IN THE MATTER OF ARBITRATION BETWEEN Employer, OPINION … · IN THE MATTER OF ARBITRATION BETWEEN _____ State of Minnesota Department of Corrections MCF-Rush City Employer, OPINION

IN THE MATTER OF ARBITRATION

BETWEEN

__________________________________

State of Minnesota Department of Corrections

MCF-Rush City

Employer, OPINION AND AWARD

BMS Case No.: 17-PA-0342

and (Joshua Burdine Discharge)

July 15, 2017

AFSCME Council 5,

A. Ray McCoy

Union. Arbitrator

__________________________________

Appearances

For the Employer

Ms. Joy Hargons

Labor Relations Consultant 4

Minnesota Management and Budget

658 Cedar Street

St. Paul, MN 55155

For the Union

Mr. Kurt Errickson

Field Representative

AFSCME Council 5

300 Hardman Avenue S.

South St. Paul, MN 55075

STATE OF MINNESOTA DEPARTMENT OF CORRECTIONS and AFSCME COUNCIL 5/BMS Case No.: 17-PA-0342 Page 2

Jurisdiction

The Parties notified the arbitrator of his selection on January 19, 2017. The Parties

selected two days, March 20 and 21, for the hearing in this matter. The hearing was held on those

days at the Minnesota Correctional Facility at Rush City. The Employer and the Union had a full

and fair opportunity to present their respective cases through witness examinations and

submission of documents and other exhibits. After the presentation of their respective cases, the

Parties elected to submit post-hearing briefs. The briefs were received on May 1, 2017 and the

record was closed at that time. The Parties agree that the issue is properly before the arbitrator

for determination. The Parties’ collective bargaining agreement governing the resolution of this

dispute states:

“The arbitrator shall have no right to amend, modify, nullify, ignore, add

to, or subtract from the provisions of this Agreement. He/she shall consider and

decide only the specific issue or issues submitted to him/her in writing by the

parties of this Agreement, and shall have no authority to make a decision on any

other matter not so submitted to him/her. The arbitrator shall be without power to

make decisions contrary to, inconsistent with, or modifying or varying in any way

the application of laws, rules, or regulations having the force and effect of law.

The decision shall be based solely upon the arbitrator’s interpretation and

application of the expressed terms of this Agreement and to the facts of the

grievance presented.” (See Agreement between Unit 208 and the State of

Minnesota, July 1, 2013 through June 30, 2015, Article 17, Section 5, p. 48;

Hereinafter referred to as “Agreement”)

Issue

The Employer submitted the following issue in writing: Did the Employer have just cause

to discharge the Grievant? If not, what would the appropriate remedy be? The Union agreed, in

its opening statement that the only issue to be decided is whether the Employer had just cause to

discharge the Grievant.

Contractual Provisions

ARTICLE 16: DISCIPLINE AND DISCHARGE

Section 5. Discharge. The Appointing Authority shall not discharge any

permanent employee without just cause. If the Appointing Authority feels there is

just cause for discharge, the employee and the Local Union shall be notified, in


writing, that the employee is to be discharged and shall be furnished with the

reason(s) therefore and the effective date of the discharge. The employee may

request an opportunity to hear an explanation of the evidence against him/her, to

present his/her side of the story and is entitled to union representation at such

meeting, upon request. The right to such meeting shall expire at the end of the

next scheduled work day of the employee after the notice of discharge is delivered

to the employee unless the employee and the Appointing Authority agree

otherwise. The discharge shall not become effective during the period when the

meeting might occur. The employee shall remain in pay status during the time

between the notice of discharge and the expiration of the meeting. However, if the

employee was not in pay status at the time of the notice of discharge, for reasons

other than an investigatory leave, the requirement to be in pay status shall not

apply.

Relevant Policies & Work Rules

Policy 103.220 Personal Code of Conduct of Employees

All employees must adhere to the provisions of Minn. Stat. §43A.38, Code of Ethics for

Employees in the Executive Branch, and Minn. Stat. §15.43…” PROCEDURES. Section F. “An

employee must not falsify documents, engage in theft or misuse of state property, or

misrepresent facts or information relevant to department/state operations. Section G. An

employee, when ordered, must cooperate, and provide full disclosure in any department

investigations involving employee or offender misconduct.

Background

The Grievant, Joshua Burdine, served as a correctional officer for the State of

Minnesota’s Department of Corrections at the Rush City correctional facility. The Grievant

worked for the Employer for twelve years and six months. At the time of his termination he had

attained the level of Sergeant or CO3. On the night of March 28, 2015, the Grievant was arrested

and charged with fifth degree assault of a female following an evening of drinking at a bar

located in Cambridge, Minnesota. The police arrested the Grievant because three witnesses

identified him as the man who assaulted the female. The female suffered injuries to her right eye

that photographs show was swollen shut. She also had cuts and abrasions on her face consistent

with having been slammed into a hard surface like the ground. She had cuts and abrasions on her

hands and knees. Some of the cuts revealed opened skin. The Grievant called his supervisor from

jail and informed him that he would be unable to come to work as a result. As a result, the


Employer launched its investigation into the matter. On April 1, 2015, the Employer notified the

Grievant that he was relieved of duty pending the completion of an investigation into the events

of March 28, 2015. Essentially, the Employer placed the Grievant on paid leave and informed

him not to speak with other employees not involved in the investigation and to cooperate fully in

the investigatory process. The Employer completed the investigation and terminated the Grievant

effective April 9, 2015. The Employer said the Grievant was terminated for violating DOC

Policy 103.220 “Personal Code of Conduct” and his position description because of his off-duty

conduct. The Grievant was tried and acquitted of both third and fifth degree assault on

September 29, 2016.

POSTIONS OF THE PARTIES

Employer’s Position

1. The Employer met its burden of proof to show it had “just cause” to discharge the Grievant.

2. The two police officers Gunter and Gross, as well as witnesses JJ and SG all gave testimony

that was consistent with the police reports the Employer used to determine whether there

was sufficient proof warranting discharge.

3. JJ and SG each testified that they saw the Grievant slam the victim to the ground, and punch

her repeatedly in the face. Their statements never changed.

4. SG did not know the Grievant or any of the other parties involved.

5. The witness descriptions as to what they saw the Grievant do to the victim were consistent

with the victim’s injuries as photographed by the police.

6. None of the neutral witnesses testified that the Grievant’s sister caused the victim’s injuries.

7. Although JJ was dating the victim at the time, he had nothing to gain by claiming the

Grievant committed the assault.

8. SG had absolutely no connection to either the Grievant, his sister or the victim. If the

Grievant’s sister had assaulted the victim, the witnesses would have said so. They had no

incentive to lie.

9. The victim identified the Grievant as the person who assaulted her. Although she was not

able to specifically describe him when she was questioned by police at the hospital, she

clearly said that she got into a disagreement with a female but it was a random guy who


“body slammed her into the street and hit her over and over again with closed fists.” Her

statement at the hospital was consistent with what witnesses communicated to the police at

the scene.

10. The day after the assault, the victim told her father that she got in an argument with the

Grievant’s sister. If the argument had turned into a serious physical altercation between the

two of them, the victim would have implicated the sister instead of the Grievant. It makes

no sense for her to lay blame on the Grievant if he was not the person who assaulted her.

What makes sense is that the Grievant beat up the victim in response to her calling his sister

derogatory names.

11. It makes no sense that people would tackle the Grievant to the ground for no reason. It

makes perfect sense to believe that the Grievant was tackled after he started beating up the

victim because people were trying to get him to stop assaulting the victim.

12. The Employer made the right decision based on the evidence collected during its

investigation. It was consistent with the evidence presented at the arbitration. They did not

believe the Grievant’s version of events recounted by him during the investigation and had

ample evidence to determine that he committed off-duty misconduct. The evidence

presented at the arbitration hearing fully supports the decision made by the Employer that

the Grievant committed off duty misconduct on March 28, 2015.

13. The union’s claim that the Grievant did not engage in off-duty misconduct lacks credibility

and should be disregarded.

14. Statements made by the Grievant and his witnesses are riddled with inconsistencies and are

simply false.

15. None of the statements provided by the Grievant, his sister or friend explain why three

neutral witnesses identified the Grievant as the assailant.

16. The Grievant provided details of what happened on March 28, 2015 that changed with each

opportunity he had to tell his side of the story.

17. At the scene on March 28, 2016, the Grievant’s only words to the police were, “Shit going

on at the end of the night, pushing, shoving, my glasses flew.” He did not say anything

implicating his sister. He claimed he was the one being hit and kicked but police saw no


marks on him. At the jail, he only added that he did not recall striking any female. He

showed the officer he had bruises to his knees but there was no evidence that he was kicked,

hit, punched in any other part of his body. He did not implicate his sister and he provided no

explanation as to why he was being beat up.

18. In his incident report dated April 1, 2015, the Grievant reported that while leaving the

restroom he noticed an altercation between his sister and an unknown girl that turned

physical once they were outside. His report did not provide any details that would lead the

DOC to believe his sister caused injuries to the victim. He only reported that he grabbed his

sister in a bear hug and the girl jumped on his back. He reported he was being kicked and

hit when CT came to his aide. The police came and he was arrested

19. In his statement during the OSI investigation, the Grievant’s version of the story changes a

bit. He claims his sister got into a verbal altercation in the bar, but it was broken up. He

says he went to the restroom and while he was still in the back of the bar, he noticed the two

of them pushing and shoving. Once he got outside they were pushing each other so he

grabbed his sister to break it up. He made no mention of the two hitting or punching each

other. He then stated that he believed the girl jumped on him and then he was kicked and

punched and was ultimately arrested after CT pulled him from the ground.

20. After he was given a Garrity warning, the Grievant claimed that his sister was “blasting”

The victim and hit her with a purse. He did not give any detail as to what he meant by

blasting her. Nor did he explain when this “blasting” or purse hitting occurred – was it

before or after the Grievant was pushed to the ground? The Grievant could not explain why

three witnesses implicated him. He told the investigator he did not see the injuries to the

victim.

21. At the criminal proceeding on September 29, 2016, the Grievant’s story changes

significantly. He testified he saw nothing in the bar that night between the victim and his

sister. This is contrary to what he wrote in his investigation report and what he said when

interviewed during the investigation. He later said after getting a shot and paying his bill,

he got closer to the door he saw two girls fighting outside, one was his sister. He claimed

he saw CT ahead of him going to his sister. He testified that he got in the middle of the two


and without using his hands, he walked the victim away, yet in his incident report and his

investigation with OSI, he reported that he grabbed his sister, not the victim. He further

testified that the victim looked like she had been in a fight, she had a gash on her nose, and

her eye was swollen. Again, this statement is different from what he said during the

Employer’s investigation, as he said he had not seen the victim’s injuries.

22. At the arbitration hearing, the Grievant’s testimony was again inconsistent with what he

said during his employment investigation. Similar to his testimony at the criminal

proceeding, the Grievant testified that while he was in the bar, he had no knowledge of any

previous altercation between his sister and the victim, contrary to what he told the

Employer’s investigator.

23. Also, similar to what he said in the criminal proceeding, he testified that when he intervened

in the “fight” outside between the victim and his sister, he moved he victim away, not his

sister as he previously said during his employment investigation.

24. The Grievant asserted that at the arbitration hearing he wasn’t forthcoming when questioned

by police and the Employer’s investigator as to the details of what happened on March 28,

2015 because he wanted to protect his sister from legal liability and did not understand that

he could lose his job if he did not tell the whole story at the employment investigation.

25. This is not the case. The investigator made it very clear to the Grievant that he was

expected to give a complete, accurate and truthful statement. Failure to cooperate would

lead to discipline including discharge.

26. The Grievant’s failure to communicate his sister’s involvement in detail was not for the

purpose of protecting her from legal liability. He did not communicate any details about his

sister’s involvement to the police or the Employer’s investigator because she was not the

one who assaulted the victim.

27. The Grievant and his cohorts concocted this assertion after the fact, when they had time to

come up with a “storyline” to avoid the Grievant from being convicted of a crime and to

hopefully get his job back.

28. Furthermore, if it had been true that his sister beat up the victim, he had the obligation to

report this to the police from the very beginning. As a Corrections Officer, he was expected


to cooperate with law enforcement and be truthful always. Instead, he allowed himself to be

arrested bringing discredit to the department.

29. The Employer still does not believe the Grievant’s assertion that he was protecting his sister

from being arrested. The Grievant is lying to protect himself.

30. As testified by the Employer’s investigator, Corrections Officers are often called upon as

part of their employment to provide testimony in legal proceedings concerning offenders.

They must have a record of truthfulness and trustworthiness. The Grievant’s inconsistent

statements with respect to what occurred on the night of March 28, 2015, has put his record

of credibility into serious question. He cannot be trusted to tell the truth. He has brought

discredit to himself which is an embarrassment to the DOC. He is not worthy to work for

the Department of Corrections.

31. The Grievant’s sister’s statements were also inconsistent, and at times did not make sense.

32. When speaking to the police on March 28, 2015, she was “all over the place”. First, she

said she was in the bar, some girl shoved her, they were screaming names, and then four or

five guys tackled her brother. Then she said someone punched her but she didn’t know who

“he” was. When asked by police how the victim got a big goose egg, she said she was

swinging her purse to try to get people off her brother. She later said that anyone could

have punched that girl there was a lot of swinging, she was swinging her purse. She never

told the police that she that she punched the victim either inside the bar or before her brother

was tackled. She only said she was defending herself without giving any detailed

explanation as to how she was defending herself or from whom. In fact, she specifically

said, “how she got punched or beat up, I don’t know.”

33. At the criminal proceeding on September 28, 2016, the Grievant’s sister claimed she was

inside the bar when the victim began swearing at her and called her a “fat bitch.” She stated

she was getting ready to leave when the victim punched her in the face several times and

then she punched her back causing the victim to fall to the ground. She claimed that CT saw

her in this altercation but was not sure exactly what he saw. She also claimed that her

brother was already outside of the bar which is contrary to what her brother testified to at

the criminal proceeding. The Grievant’s sister further testified that once she was outside the


bar the victim was swearing at her, screaming vulgar things and eventually lunged at her.

She said she grabbed the victim by the hair and started punching her four or five times

before CT and the Grievant broke them up. She claimed she saw the Grievant had his hands

behind his back and was moving the victim away while CT was pushing her back to get a

gap between them. She claimed the victim was still yelling and screaming and her brother

responded by saying “Jesus loves you”. She testified that she saw the victim jump on the

Grievant’s back. She could see because she had higher boots and could see over CT. She

then claimed that someone tall jumped on her brother and “they both go down,” followed by

eight or ten people on top of her brother. She then stated she saw the victim get up and

jump on top of the pile. She testified that she tried to tell Officer Gross that she was the one

who was in the altercation, she had blood on her hands and her cheek was swollen.

34. At the arbitration hearing, the Grievant’s sister claimed she got into a physical altercation

with the victim inside the bar. She stated she told her friend, “Let’s go.” She asserted CT

escorted her out of the bar and once outside, the victim continued swearing at her and

lunged at her. She asserted that she punched the victim and while doing so, she lost her

diamond yet she provided no proof of this. She said that when breaking up the fight, she

observed the Grievant belly to belly with the victim with his hands at his side. She said she

saw the victim jump on his back. Her brother was on the bottom of the pile. She was

swinging her purse. She could not explain why she told police that she didn’t know how the

victim got beat up. She admitted that she told police she would do anything for her brother,

she would take a bullet for him. The Grievant’s sister’s statements at the criminal

proceeding and the arbitration are not credible when compared to the statements made by

three neutral witnesses. They do not add up with what she initially told the police. No one

saw her punch he victim in the bar. No one could corroborate her story that she saw the

victim jump on the Grievant’s back. The only people who corroborated her assertion that

she punched he victim outside of the bar were her brother, the Grievant, and her brother’s

close friend, CT. These are not neutral witnesses. They all had a reason to lie. They wanted

to shed doubt in the criminal proceeding and they wanted him to get his job back.


35. CT’s statements had inconsistencies as well. On the night of the incident, March 28, 2015,

CT did not give a statement to the police. However, there was no indication that he tried to

give a statement but was refused. Listening to the DVD it appears that the only thing CT

discussed with the police was when the Grievant would be released and whether he could

make a phone call.

36. Incident report dated March 30, 2015. CT’s incident report makes a brief indication that he

witnessed a physical altercation between the Grievant’s sister and another girl but he did not

provide specifics that would lead the DOC to believe that the sister was responsible for The

victim’s injuries. He reported that he tried to de-escalate the situation and stepped between

them and separated them. He reported that he removed the Grievant’s sister from the

immediate area. He indicated that after he moved her he looked back and saw the Grievant

on the ground with multiple people assaulting him. This report was not consistent with

what the Grievant had reported as he had stated that he was the one who grabbed his sister

in a bear hug and told her to go to the car.

37. CT gave a statement to Detective Harvey on May 3, 2016. He told the detective that the

“storyline” was that he saw the Grievant’s sister and the victim inside the bar get into a

heated argument. He grabbed the Grievant’s sister and led her outside the bar. He did not

see a physical altercation in the bar. He then said that once outside the two started swinging

at each other and he stepped back because he did not want to risk his job by getting involved

in a fight. Finally, he intervened and pulled the Grievant’s sister away and claimed the

Grievant stepped in between the other one. He claimed he got the Grievant’s sister to the

curb and then turned around and saw four guys pushing the Grievant over and ganging up

on him. He believed there was about five seconds from the time he pushed the Grievant’s

sister away that he had his head turned away from the Grievant. He told the Grievant’s

sister to go to the car and he got the Grievant from the bottom of the pile. Then the cops

showed up. He claimed that the Grievant’s sister admitted to it to the police yet the squad

video does not show that the Grievant’s sister made a full admission that she injured the

victim.


38. At the criminal proceeding on September 28, 2016, he testified he noticed the Grievant’s

sister and the victim in a heated argument. He did not indicate that he saw the two of them

fighting or that he noticed any injuries to the victim inside the bar. He asserted he escorted

the Grievant’s sister out the door and the victim was behind them yelling vulgar statements.

He further stated that as soon as the victim was outside the bar, she and the Grievant’s sister

lunged at each other. the Grievant’s sister grabbed the victim’s hair and was laying upper

cuts to her face. He claimed the victim dropped to the ground and then the Grievant’s sister

picked her back up and hit her in the face. After it seemed that the victim couldn’t defend

herself, he stepped in and grabbed the Grievant’s sister and the Grievant walked the victim

away. When he turned around, four or five people were on top of the Grievant and pushing

him across the street. He pulled the Grievant from the pile. He did not mention anything

about seeing the victim jump on the Grievant or that she jumped on top of the pile. In fact,

he said when he pulled the Grievant from the pile, the victim was over on the sidewalk. He

specifically testified he could not see any injuries on the victim’s face claiming her hair was

covering her face.

39. At the arbitration hearing, CT proudly described his training in de-escalation tactics and

conflict resolution. He claimed to have seen a cut on the victim’s nose when she was inside

the bar. He never brought this up before in previous statements. He stated that when

breaking up the fight, the Grievant walked the victim away with his hands behind his back

but he then claimed he was facing away from the Grievant for about five to ten seconds

when he was moving the Grievant’s sister. He did not hear the Grievant say anything to the

victim. He stated the fight between the Grievant’s sister and the victim lasted about five to

ten seconds, yet he didn’t believe that the Grievant could have inflicted injuries to the victim

in the five to ten seconds he had his head turned. He stated that he didn’t see any injuries to

the victim after the Grievant’s sister punched her except for the cut on her nose because it

takes a while for bruises to show up.

40. The statements made by the Grievant, his sister and his good friend don’t add up. Each

witness gave statements that were inconsistent. Their statements conflicted with each other.

They do not match with the consistent statements made by the Gunter, Gross, JJ, SG, and


the victim. Statements made by the Grievant, his sister and his good friend were

inconsistent because they were not truthful. It is always easier to remember the truth than it

is to keep track of multiple lies.

41. The burden of proof in grievance arbitration is different than in a criminal proceeding. The

Employer is not required to prove every single fact. It only needs to prove just cause for

termination. The Employer is not required to prove beyond a reasonable doubt that the

Grievant’s actions reached all the elements of the charges against him. Although the jury in

the criminal proceeding determined there was reasonable doubt, we don’t know what caused

the jury to reach that conclusion.

42. Being found not guilty does not mean that the Grievant is innocent of off duty misconduct.

The jury did not have all the facts the Employer had. It did not have the investigation data

that the Employer had that could have impeached the Grievant’s trial testimony.

43. The Employer only has to prove by a preponderance of the evidence that the Grievant

committed off-duty misconduct.

44. The evidence collected by the Employer and the evidence and testimony presented at the

arbitration hearing strongly supports that two police officers, three neutral witnesses, the

victim, the victim’s father all believe that the Grievant committed the egregious act of

picking up the victim, throwing her to the ground, and repeatedly punched her in the face.

45. He committed this act most likely in response to the fact that his sister and the victim got

into a verbal altercation that included his sister being called vulgar and derogatory names.

46. The Grievant’s actions brought discredit and embarrassment to the Employer, in violation of

Policy No. 103.220, Personal Code of Conduct of Employees, as well as the position

description of a Corrections Officer.

47. The decision to discharge the Grievant was appropriate. The Grievant’s actions were a clear

violation of DOC policy which states, “All department employees when on and off duty,

must conduct themselves in a manner that does not bring discredit to the department.”

Assaulting a woman, a private citizen who happens to have a family member in the prison

system is certainly off-duty misconduct showing a nexus to the job.


48. As a citizen of the State of Minnesota, the victim has a right to expect Corrections Officers

to treat all people with respect. This is especially true considering she has a father in prison

who is expected to show respect towards Corrections Officers. The Grievant’s action

caused this citizen to suffer immensely. His actions brought discredit to his position of

authority. He brought embarrassment to the agency by being arrested and placed in jail.

49. This was not the Grievant’s first brush with the law. He has a history of arrests and

convictions involving assault. Luckily for him, when he committed these past offenses, the

DOC did not have a consistent protocol of how to handle off-duty misconduct. But that

changed in 2010.

50. He received subsequent training on the Code of Conduct. He knew that if he were to admit

to his actions on March 28, 2015, he would be in jeopardy of losing his job. By his own

admission, the act of picking up a female, throwing her to the ground and punching her,

would be a reason for discharge. He could not admit to this action because he knew the

outcome would warrant his termination. Instead he lied and convinced his sister and friend

to lie for him as well.

51. The Grievant proved he can’t be trusted. His inconsistent statements show that he is not a

credible person. He testified that he didn’t understand that he would lose his job if he didn’t

tell the truth, and that is why he didn’t provide details about his sister’s involvement in the

assault on March 28, 2015. But the evidence shows he was explicitly told he was to tell the

whole truth. This was a lie in hopes to cover another lie. The evidence shows that his

sister was not the person who picked up the victim, threw her to the ground and punched her

in the face repeatedly. This act was committed by the Grievant.

52. He also violated the Personal Code of Conduct Policy which states that an employee must

not falsify documents, misrepresent facts or information relevant to department/state

operations. It also states, “An employee when ordered must cooperate and provide full

disclosure in any department investigations involving employee or offender misconduct.”

53. Finally, the Grievant cannot return to work for the DOC because of the risk that it imposes

on him and the department as a result of his egregious conduct. He assaulted an offender’s

daughter. This offender knows about this and has so much stated that would take care of it


one way or another. By no means is the DOC condoning the offender’s threats. However,

this is the position the Grievant placed himself in based on his actions on March 28, 2015.

Union’s Position

1. The Employer did not have just cause to discharge the Grievant. The facts of the case are in

dispute. The transcript of the four-day trial should be carefully considered.

2. The employer fired The Grievant for beating the victim. The record has shown that it was not

The Grievant who beat-up the victim, but the Grievant’s sister. Consequently, there is no just

cause for discipline in this case.

3. The night in question was that of Friday, March 27, 2015. The Grievant, his sister and CT,

offered the following account.

4. The Grievant’s sister said the group arrived at the bar between 10:15 and 11. The Grievant and

CT pegged the time at between 10:30 and 11. Joining the trio were the Grievant’s girlfriend and

a friend from work (another corrections officer).

5. The group arrived at the Sideline’s bar, where the Grievant said his girlfriend were holding a

table.

6. CT said that there were approximately 40 people in the bar, which he described the bar as being

dark and dingy. He said there was a back room with pool tables and a dance floor, and that

music was playing that night.

7. The Grievant’s sister said that a woman was “super-drunk” and that she slammed into the

Grievant’s sister as she and her group made their way to an adjacent table.

8. The Grievant’s sister said that, in response to being slammed into, she said, “excuse you.”

9. At that point, the woman who the Grievant’s sister later learned was the victim, stumbled up to

her. The Grievant’s sister described the victim as staggering, slurring, puffy-faced and

belligerently drunk. (The victim’s blood alcohol level by the end of the night was .287. This is

more than three times the legal limit to drive.) The Grievant’s sister said the victim then said to

her: “fuck you, you fat bitch.”

10. The Grievant’s sister testified she then told the victim “I’ve never heard that before.” The

Grievant’s sister then told her friend “I’m done.” The Grievant’s sister said she was talking over


the situation, preparing to leave, when the victim punched he Grievant’s sister in the face,

knocking her into the bar. The Grievant’s sister could not believe what happened. So, the

Grievant’s sister punched the victim, who went to the floor. At that point, people started

breaking up the fight, the Grievant’s sister said. The victim, however, came back to her feet and

lunged at her. A group of bar patrons intervened, one of them grabbing the Grievant’s sister’s

arm and refusing to let go.

11. CT said that it was near the end of the night and he was heading outside for a smoke. CT said he

paid his tab and noticed, at the front of the bar, the Grievant’s sister and the victim in a heated

conversation. His impression was that the two had already been separated by others at the bar.

12. The bouncers then started asking people to leave, the Grievant’s sister said. CT showed up and

pulled her away.

13. CT and the Grievant’s sister left the bar, and the Grievant’s sister said the victim was standing

right outside the door with her party and several males. The victim began shouting profanities at

the Grievant’s sister, calling her a ‘fat bitch’ and a ‘stupid cunt.’ The Grievant’s sister said that

the victim also threatened to “kick her ass.”

14. CT said the victim was obviously very drunk, staggering and slurring her words, and that she had

a cut on her nose.

15. Then, the Grievant’s sister and CT both testified that the victim ran at the Grievant’s sister to

attack her. “She charged me,” the Grievant’s sister said.

16. The Grievant’s sister said that she grabbed the victim by her hair and punched her with her left

hand. (The Grievant’s sister said she is naturally left-handed.) The Grievant’s sister said the

victim fell to the ground, got back up, and went after her again. Again, the Grievant’s sister said

she grabbed the victim and punched her in the face.

17. CT said the victim’s repeated falls during the melee could have caused the cuts and scrapes (road

rash) to her face.

18. The Grievant’s sister testified that some of those cuts were probably caused by two large rings on

the fingers of her left hand. She said that she lost a diamond from one of the rings during the

fight.

19. The Grievant did not see the beginning of the fight. He said he went to use the restroom, and


when he returned to the table, his party had left. So, he paid his tab, finished a drink the bar

tender bought for him, and went outside.

20. The Grievant said there was a big commotion on the sidewalk in front of the bar. He saw his

sister fighting with the victim.

21. CT said there were 10 or 15 people watching the fight, hooting, and hollering. The Grievant said

that none of the observers were stepping in to break up the fight.

22. CT said he wasn’t sure what to do, but it was clear the victim couldn’t defend herself and he

needed to help her.

23. The Grievant said the fight between his sister and the victim was very one-sided. He and CT

made eye contact and decided to intervene. “Even if it hadn’t been my sister, I would have

intervened,” the Grievant said. “Enough’s enough.”

24. The Grievant said he noticed injuries to the victim’s face, and that she was belligerent, slurring

her speech and “super drunk.”

25. CT then grabbed the Grievant’s sister and began pulling her away from the fight. CT said he

saw the Grievant interpose himself between the victim and the Grievant’s sister, facing the

victim. The Grievant testified that he then, with his hands at his sides, slowly walked the victim

away from the scene, without ever touching her with his hands. CT said that the Grievant was

not angry during this interaction, but remained calm.

26. At the time, the Grievant said the victim was yelling, swearing, and threatening him. He said his

goal was to separate the two combatants and de-escalate the conflict.

27. As CT and the Grievant separated the Grievant’s sister and the victim, the crowd grew.

28. After the Grievant moved the victim away from the fight, he turned his back on her and began

walking away.

29. As the Grievant was walking away from the victim, the Grievant’s sister said she watched the

victim charge at him from behind and jump on his back. Another man then cold-cocked the

Grievant, punching him from behind, she said. The Grievant went down, the Grievant’s sister

said. A bunch of men then piled on the Grievant, punching and kicking. The victim was on top

of the pile, the Grievant’s sister said. The victim fell off the pile, landed hard, then climbed back

on top of the people piled on the Grievant.


30. CT said he took his eyes off the Grievant for five or ten seconds as he pushed the Grievant’s

sister away. But then he saw her eyes widen, and he said he turned around and saw the Grievant

on the ground, being punched and kicked by four or five people. He said that the Grievant was

shaking people off him. One of the members of the group was the victim, who was literally on

top of the Grievant. CT said that when the Grievant shook off the victim, she hit the ground hard.

31. The Grievant’s sister said she waded into the melee swinging her purse, not sure who she was

hitting.

32. The Grievant said that, after he turned his back on the victim, someone punched him from behind

and tackled him. Then he was on the ground, with people circled around him, punching, and

kicking him. The Grievant said he didn’t know why he was being attacked. He said he did not

ever punch, grab, or throw the victim and that he did not “climb on her and pound her.”

33. The Grievant said he tried to get up and got knocked back down again. Then CT picked him up

and dragged him out of the dog-pile. The Grievant said CT assisted him to their van, while

people from the bar followed, shouting curses and threats.

34. CT said the Grievant had been punched in the head, and appeared disoriented and did not know

what was going on. The Grievant said his legs were wobbly and that “his bell was rung good.”

He said he was groggy, and that he believed he was concussed. He had also had a tooth broken

and a painful blow to his ribs.

35. JJ, the victim’s boyfriend, was among the crowd who followed them, the Grievant’s sister said.

She said he had his phone out and shouted “woman beater. The cops are on their way.”

36. The Grievant’s sister said she responded: “Let the cops come, she assaulted me first.” The

Grievant’s sister said that she, her friend, and CT then had a cigarette.

37. The Grievant’s sister said Officer Gross arrived and came over to them. She said that he asked

the group what was going on tonight. The Grievant’s sister said that CT responded, “she got in a

fight.” The Grievant’s sister said she told Officer Gross “I was defending myself.” The

Grievant’s sister repeated that phrase several times. She also repeatedly told Officer Gross that

the victim assaulted her.

38. The Grievant’s sister said she told Officer Gross: “he didn’t do it – I did.” She said she showed

her hands to the officer, which were swollen and bloody. The Grievant’s sister said the Officer


Gross told her ‘we have what we need.’

39. Shortly after Officer Gross arrived, a county deputy showed up. CT said the county officer

started yelling and swearing at their party – CT, the Grievant, his girlfriend and the Grievant’s

sister. He did not explain why he was yelling, CT said. “He just told us to shut the fuck up, so

we did.”

40. His testimony was supported by the Grievant, who said the sheriff was “out of control, yelling

and cursing. The sheriff insulted the Grievant’s sister, the Grievant said.

41. Officer Gross then said the Grievant was being detained because he was accused of assaulting

the victim. The police officers put cuffs on the Grievant, said CT.

42. The Grievant said he showed his hands to Officer Gross, demonstrating that there was no blood

nor injuries to his hands – typical signs of a fight.

43. The Grievant’s sister also testified that there were a number people standing around who said

that the Grievant did not beat the victim, but the police officers wouldn’t interview them.

44. CT said none of the officers ever asked him what happened.

45. When the Grievant’s sister said she wanted to press charges, she said the response from the

police officer was no, that he wouldn’t spend all night doing paperwork.

46. Officer Gunter testified that when he arrived at the scene, he parked in front of the bar, asked the

gathered crowd if anyone had seen anything. Three people replied in the affirmative. Officer

Gross said he then asked the rest of the crowd to leave, because none of them volunteered to

seeing anything. This is despite guidance in the Cambridge Police Department Policy manual,

stating that an officer responsible for an initial investigation shall “make reasonable attempts to

locate, identify and interview all available victims, complainants, witnesses and suspects.”

47. When he interviewed the three witnesses, they were all standing together. This allowed each

witness to hear the story of the others, and gave them an opportunity to coordinate their stories.

48. Officer Gunter did not attempt to interview anyone beside the three people who came forward to

volunteer as witnesses, even though there were many people in the area. He did not attempt to

get any of their names or phone numbers. He did not enter to bar, to see if any of the staff had

witnessed anything important, or ask the staff to view their internal camera footage to gain more

information on the altercation.


49. Officer Gross did speak with the Grievant, who said “my sister got in an argument. Punching

and shoving happened.” Officer Gross also testified that the Grievant, after being read his

Miranda rights, gave the same statement to Officer Gross that the Grievant had given earlier:

that he was breaking up a fight, that he didn’t strike anyone, that he didn’t recall throwing

anyone to the ground.

50. In any case, Officer Gross reported that he did not interview anyone at the scene except the

Grievant. Although Officer Gross took the Grievant’s sister’s phone number, he did not follow

up with a call for more information. Nor did he follow-up with questions on her repeated

statements that she had been attacked and was defending herself.

51. Officer Gross said he did not interview CT, who was a firsthand observer of the events, and who

was near Officer Gross’s squad car for much of the time Officer Gross was on the scene. In fact,

at one point in the evening, someone is recorded on Officer Gross’s squad video as saying “she

was the one who attacked you. I watched the whole thing happen.” While the comment is

unattributed, it does indicate firsthand knowledge of what happened, in reference to the

Grievant’s sister’s comments. Since Officer Gross did not see the fight, it is unlikely he made

the comment. In fact, it is more likely that this was a statement from an eye witness who Officer

Gross failed to interview; an eye witness with whom Officer Gross was talking, and who

apparently supported the Grievant’s sister’s story.

52. Officer Gross testified that limited resources prevented him from interviewing more witnesses.

53. The Cambridge Police Department Policy manual said if information indicates a crime has

occurred, an officer shall “determine if additional investigative resources (e.g. investigators or

scene processing) assistance is necessary and request assistance as required.” In this case, the

Isanti County Sherriff’s department did provide support. They did not, apparently, provide

investigative assistance. In fact, based on the testimony described above, the Isanti County

Sherriff discouraged witnesses from telling their story when he yelled at them to “shut the fuck

up!” None of these witnesses were recorded in the police report which the employer used as the

basis for discharge, and their testimony did not enter the legal record until many months after

The Grievant’s discharge.

54. Officer Gross also indicates that the officers have witnesses “not related to anyone.” Three


witnesses, aside from the victim, were interviewed by Officer Gunter that night at the bar.

Clearly, the victim and JJ, given their romantic relationship, were related to each other. And SG

said that he had gone to High School with JJ.

55. Officer Gross said he drove his squad car to where the three eyewitnesses were standing. They

looked into the car, saw the Grievant in handcuffs, and identified him as the victim’s assailant.

56. The Grievant testified that he used his first call from jail to notify the employer of what

happened. The Grievant made that call at around 3:35 in the morning on March 28, according to

Brewer’s report.

57. Also on March 28, his next day at work, CT wrote a confidential report, giving a condensed

version of the incident, saying that there had been a physical altercation. The word “altercation”

is the standard word used to describe a physical fight in reports at his workplace, CT said. CT

said that he gave his report to his Captain, because – given the content of the report – he didn’t

think going to a supervisor was appropriate. CT said DOC policy would have allowed him to

give the report directly to the warden.

58. Despite the fact that he gave the report to a Captain, CT said it was his Lieutenant who signed off

on it. Normally, the officer who received the report would sign it, CT said.

59. The employer challenged the thoroughness and professionalism of CT’s report under cross-

examination. In response, he offered the following explanation of the process.

60. CT said such reports are typically a long paragraph or two in length. Long reports can be a page

or a page and a half. CT said he assumed there would a follow-up conversation about his report

with management. He said he wasn’t sure how to handle the report, or exactly what information

management needed. Typically, he said, managers will get back to the report writer if they have

a question about what was submitted.

61. CT said there have been numerous times when the Employer has asked him to add detail to a

report and resubmit it. In this case, no one from the Employer asked him to expand on his report,

or asked him about what happened that night.

62. Neither was CT disciplined for writing a false report.

63. The following Monday, the Grievant’s sister called the police department in an attempt to press

charges, and according to her, received no call back. Also, that following Monday, CT said he


decided to go give a statement to the Cambridge Police. He said that Cambridge police staff

referred him to Isanti County. At Isanti County, staff said the case was being handled by the

city, CT said, so he went back to the Cambridge Police Department. CT said he got a call from a

Cambridge Police investigator two days later, and that he gave the investigator statement over

the phone. CT said that in May, he received another call from a Cambridge detective, and gave

another statement. CT said that the detective told him there was no record of his earlier

statement, and that the second detective had gotten the case a week prior.

64. The victim testified that she went to the Sidelines Bar that night with her friend and her

boyfriend. The victim said she did not fight with the Grievant’s sister inside the Sidelines Bar.

She said that her friend got into a verbal argument with the Grievant’s sister, and then her party

left, along with the Grievant’s sister. At the arbitration hearing, the victim said she did not recall

a conversation with the Grievant’s sister. In her witness statement, however, she said she did say

something to the Grievant’s sister inside the bar. The victim testified at the arbitration hearing

that, outside the bar, The Grievant suddenly rushed at her and body-slammed her. The victim

said she then blacked out, and remembered nothing after that until she got to the hospital. She

denied jumping on the Grievant’s back. In her courtroom testimony, the victim, did not mention

a black out. Under direct testimony at the arbitration, the victim testified that she didn’t

remember anything from the time she was attacked until she was in the Hospital. At the

Grievant’s trial, however, she testified that officers asked her to identify the Grievant. This

would have occurred after the attack, and before she went to the hospital. She also said that she

testified to remembering that she sat and waited for the ambulance. She went on to describe

speaking with a number of people at the scene, after her attack, before the police reached her.

65. She told another story to her father in a phone conversation with him on March 28, 2015. She

said, “Out of nowhere this dude just came up and fucking drug me outside.” Everyone was

watching, she said, and no one helped her. Clearly, the victim was indicating to her father that

The Grievant grabbed her inside the bar. The victim also told her father that she was unconscious

the whole time and remembered nothing, and knew only what her friends told her. That is also

different from what she said both in court and at the arbitration hearing. Under cross, the victim

admitted that she told her father she had been dragged from the bar because that is “what she was


told.” This indicates the victim did not actually remember what happened, either inside the bar

or outside on the street.

66. After the fight, Officer Gross went to the hospital and interviewed the victim. He reported that:

“She said that some random guy came up and body slammed her onto the street and then hit her

over and over again with a closed fist. She said she did not know what he looked like or who he

was.”

67. At the hearing, the victim said she didn’t recall a conversation with the Grievant’s sister. In her

conversation with her father, however, she described an exchange with the Grievant’s sister

wherein the Grievant’s sister called the victim “trailer trash.”

68. Further, in his supplemental report, Officer Gunter reports that the three eyewitnesses all saw the

victim arguing with the Grievant’s sister in the bar. The victim also offered conflicting testimony

on her activities that night. She said she sent her children to their father’s, did some laundry,

then had dinner at home – which was grilled. She first said she didn’t remember when she

started drinking. She later testified that she started drinking around six.

69. Initially, she didn’t remember what time she arrived at the bar, then said she got there around 7

or 8. Her first comment was that she didn’t drink at home, and then testified that she started

drinking at home around 6 – which would have been before she got to the bar. There are also

many discrepancies between the victim’s testimony at the arbitration hearing, and her testimony

in court. During the arbitration hearing, the victim testified that she was no longer taking Zoloft.

During the trial, however, she testified that she was taking Zoloft at the time of the incident. She

also testified that she knew she was not supposed to take it when she was drinking, and that the

combination of Zoloft and alcohol could cause her to become impulsive and lose control.

Whereas the victim told her father on March 28 that she did argue with the Grievant’s sister, she

testified in court that she did not.

70. SG testified at the arbitration that the dispute inside the bar was between the Grievant’s sister and

one of the victim’s friends. At the trial, however, he testified the dispute was between the

Grievant’s sister and the victim. That is also what he stated in the interview documented in his

witness contact form.

71. In the police report on the incident, SG is reported as saying the he saw the victim and the


Grievant’s sister having an altercation in the bar. “Then they went outside and the Grievant

snapped because during the altercation someone hit his glasses off his head.” If the glasses were

knocked off during the altercation, as SG reports, and the altercation was in the bar, then why

would the Grievant snap outside the bar? SG also testified that he saw the Grievant’s sister in the

process of having a conflict. He offered no evidence on how the conflict started.

72. The story told by JJ at the hearing contradicts his testimony at the Grievant’s trial, and the

information contained in his witness contact form.

73. At the hearing, JJ testified that “his buddy grabbed me.” JJ said he then jumped on the Grievant,

and “his buddy tackled me.” Then several people pulled the Grievant off of the victim, JJ said.

74. In his witness statement JJ said that he was held by someone who accompanied the Grievant.

There is no reference to JJ jumping on the Grievant, or a group of people pulling the Grievant off

of the victim. JJ said the alleged assault lasted for 1 – 2 minutes, and concluded when the

Grievant ran off. JJ also said that he was held by someone else, who he later learned was a

friend of the Grievant.

75. At the trial, JJ made no mention of “jumping” on the Grievant and being “tackled” by his friend.

He also testified in court that the attack ended, not after the Grievant simply fled, but after a

group of people pulled the Grievant off the victim.

76. The employer raised issues with a variety of past discipline and coaching statements received by

the Grievant.

77. The most recent coaching statement came from October 15, 2014. The employer alleges that the

Grievant failed to notify the DOC of two misdemeanor charges dating back from 2007.

78. Apparently, the issue was not overly significant. The Grievant received notice of the pending

coaching session from the Warden at the time. The Grievant said he had called in sick on the

day the warden phoned him. According to the Grievant, the warden told him – quit calling in

sick so much. And get your ass in here tomorrow. We’re going to give you a coaching

statement and a promotion.

79. The next day, he Grievant received the coaching statement and was also promoted to CO3 –

Sergeant.

80. The Grievant received an oral reprimand for an attendance issue in 2012. He has not been


disciplined since for attendance, an issue unrelated to the allegations at issue in the instant

grievance.

81. In 2007, The Grievant was issued a three-day suspension for allegedly threatening another

officer. This discipline was issued eight years prior to the instant discipline, and there have been

no same or similar disciplines since then, indicating that the discipline successfully corrected the

behavioral problem.

82. The Grievant received a written reprimand about this time in 2005. This discipline was expunged

from his record.

83. The employer attempted to use the troubles faced by The Grievant during his marriage as

evidence of a pattern of abusive treatment toward women. In 2003, The Grievant received two-

years’ probation for misdemeanor domestic assault.

84. In 2005, he was charged with misdemeanor assault. He received 1year probation.

85. In 2007, he was accused of making harassing calls to a friend of his ex-wife’s. The Grievant said

that phone records did not indicate the volume of alleged calls occurred, and he received one-

year of probation.

86. The Grievant’s legal troubles were minor, and they related to a painful divorce. There is no

indication that he engaged in the kind of random, senseless violence alleged by Ms. The victim.

87. The Grievant’s overall performance evaluations have been at or above the satisfactory level.

While he was marked down for a lack of professionalism in his 2007 evaluation he still received

an overall rating of satisfactory for that year. Typical comments in his evaluations are very

positive, and in recent years, he has scored as exceeding expectations in a variety of areas. He

received a letter of commendation April 15, 2009 as a result his excellent performance at an A-

Team training. And on June 22, 2012 he received a letter of commendation for his quick

response to an attack on an offender that might otherwise have proven fatal.

88. The Grievant and CT are seasoned Corrections Officers. They are highly trained and

experienced at dealing with violence and breaking up fights. The Grievant is a Corrections

Officer Three – a sergeant – who has worked at the Minnesota Correctional Facility at Rush City

for 12 years. As a sergeant, the Grievant is a lead worker who oversees unit activities. He said

he is a team leader, responsible for keeping everyone safe – both staff and offenders, and for


making sure his unit is orderly. The Grievant is also certified in Crisis Intervention Training and

providing training on mental health. He said he talks to inmates about their crises and provides

mental support. He is also a field training officer for new staff, and offers advice to new staff

through the peer mentorship program. The Grievant also serves on the A-Team, which is an

emergency response unit of on-duty officers.

89. The Grievant has received physical violence training at the DOC, which covers pressure point

control, control tactics and empty hand techniques. He said this is annual training, 16 hours per

year, with 40 required credits on line. He said the initial training is 6 weeks for new hires joining

the DOC. The Grievant also said he has a BA in criminal justice.

90. The Grievant said he has responded to hundreds of fights during his time at Rush City. He said

the first officer on the scene generally takes command. Then chemical irritant is used to separate

the combatants. Officers work as a team, The Grievant said, “If someone goes left, you go right.

The goal is to calm the situation and to not injure the inmates.”

91. CT is a Corrections Officer 2. He has worked at the Minnesota Department of Corrections

Facility for six years, and is currently assigned to visiting room security. CT said that he has

broken up 20 or 30 fights during his time at the DOC. He said that he is typically trained twice a

year on tactical self-defense, which includes joint manipulation, control tactics and hand-cuffing

individuals. In the case of the conflict between The Grievant’s sister and the victim, it was a

“seamless breakup” CT said, requiring no joint locks. CT said he is a member of the crisis

negotiation team, and that he is also the coordinator for the integrated conflict management team,

which he has been a member of for four years. CT said he is trained in mediation, and provides

training in diagnosing and understanding conflict to other DOC staff. CT said he also facilitates

“participant circles” at the facility, which helps people discuss and resolve their issues. Even

though CT had reported the incident and worked in their own facility, no one at the employer

asked him even one question about what happened.

92. During his investigative interview, under a Garrity warning, when asked how the victim became

injured – the Grievant responded “she was in a fight with my sister. My sister blasted her in the

face … I believe the injuries came from her, from my sister.” Despite this clear information,

managers made no effort to speak with the Grievant’s sister. In fact, when the Union submitted a


notarized letter from the Grievant’s sister at the third step grievance meeting – in which the

Grievant’s sister admitted to beating the victim – Warden Jim Benson said he ignored it. During

his investigative interview with the Grievant.

93. The criminal proceeding provides valuable information in this case – some of which is addressed

in this brief, and much that is not – which can help determine the credibility of the witnesses and

otherwise inform the arbitrator’s decision.

94. We ask that the arbitrator use a clear and compelling standard of evidence to determine the

merits of this case. It is discharge, and involves criminal matters. In this story, there are two

narratives – one told by the Grievant, the Grievant’s sister and CT. The other is told by the

victim, JJ and SG. The record shows that the narrative of the Union’s witness is more credible

than that of the Employer’s. The central question is this: did the Grievant randomly attack and

beat the victim? The answer to that question lies in another - what motive did the Grievant have

to attack the victim? Also, the Employer based its disciplinary decision on the evidence

contained in a police report. That report was a legal document, which provided the basis of

charge – an accusation - which was then carefully weighed and measured according to the well-

established standards of a trial. The Grievant was found to be not guilty of that charge. Again,

that does not mean that the decision of the court will supplant that of an arbitrator. It does,

however, illustrate the responsibility of the Employer to conduct a disciplinary investigation with

due diligence, rather than to hang the destruction of an employee’s career on the raw allegation

of another jurisdiction which – in this case – was unproven. The Employer decided the Grievant

was guilty by accusation. And what of CT? What of his credibility? His testimony and

demeanor have been unwavering. He would have known if his friend and coworker were guilty

of willfully, brutally, battering a drunken woman half his size. What would he have done had

this allegation been true? CT said that, if he had seen the Grievant physically battering the

victim, he would have intervened to stop him and reported the Grievant the next day. The

Grievant did not batter the victim. He stepped in to save her from injury. He should be

commended for his efforts, not punished with discharge. The Grievant was a proud and

successful Corrections Officer. He loved his job, and relied upon that career to support his


family.

95. The Union respectfully requests that you return The Grievant to work, and make him whole in all

ways.

111

OPINION AND AWARD

The Standard and Quantum of Proof

The Union argues that the Employer should be required to meet the clear and convincing

standard of proof that it had just cause to terminate the Grievant. The arbitrator believes that a

clear and convincing standard of proof is appropriate. Imposition of the clear and convincing

standard is often applied in recognition that discharge is the ultimate penalty that can be issued

by an employer. Discharge, in an immediate and fundamental way, throws the employee’s life

into disarray including future employment prospects. The arbitrator accepts that the Union

wishes to impose a very onerous burden on the Employer to make sure the Employer resorts to

discharge only in cases where the evidence is clear that the employee engaged in misconduct.

Too often, however, the clear and convincing standard is confused or equated with proof

beyond a reasonable doubt. The possibility of such confusion exists in this case because the

Grievant was charged with third and fifth degree assault and found not guilty on both counts. At

the hearing of this matter, it was clear that the Union’s strategy centered around casting doubt on

the evidence pointing to the Grievant as the assailant. By doing so, the Union gave the

impression that it felt the key to making its’ case was simply to point to someone else, in this

case, the Grievant’s sister, as the real assailant and if successful in creating doubt or confusion as

to what happened that night, then it should be concluded that the Employer did not meet the clear

and convincing standard.

The Union painted this picture of its strategy in several different ways but among them

was the questioning of whether the police interviewed sufficient witnesses at the scene, gathered

sufficient evidence from others including the Grievant’s sister and whether the victim’s version

of the events should be discredited given the level of alcohol in her blood and possible


prescription drug use. The cornerstone of the Union’s strategy, however, was an attempt to

demonstrate that the Grievant’s sister was the true bad actor. In the criminal trial, that strategy,

because it was aimed at making the jury’s job of finding guilt beyond a reasonable doubt more

difficult than not, carried the day.

But, the clear and convincing standard imposed on the Employer in this arbitral process

cannot be defeated by simply casting doubt. Here, what matters most is that the Employer

satisfies its’ contractual “just cause” burden. The Parties’ have bargained for the “just cause”

standard and the Employer must prove that it has met that standard if its’ decision to discharge is

to be upheld. The arbitrator examined that question. It is the only issue put forth by the Parties.

“Did the Employer have just cause to discharge the Grievant?”

To meet its’ burden the Employer must provide proof that the Grievant engaged in

misconduct and that discharge was the appropriate level of discipline. That proof can come from

eyewitness accounts or be proven circumstantially. It is attention to the facts/evidence put forth

during the hearing of this matter that will determine whether the Employer’s “just cause” burden

has been met. Had there been no criminal proceeding, the arbitrator would have approached an

examination of the evidence in this case in the same manner as was done here and in all other

similar cases. In other words, the fact that the Grievant was charged with third and fifth degree

assault and a jury acquitted him of those charges does not mean that the arbitrator must defer to

that verdict nor does it relieve the arbitrator of the responsibility to carefully evaluate the

evidence in an effort to determine whether the Employer met its’ burden. The arbitrator

examined all the evidence put forth during the hearing including the post-hearing briefs and the

transcript of the criminal trial with an eye toward determining whether the Employer provided

clear and convincing evidence of the Grievant’s misconduct.

It is not surprising that the “clear and convincing” standard is sometimes confused with

the “beyond a reasonable doubt” standard imposed on prosecutors in criminal proceedings.

Consider, the instructions to the jury in the Grievant’s criminal proceeding, for example. Those

instructions included the following:

“Proof beyond a reasonable doubt is such proof as ordinary men and women

would act upon in their most important affairs. A reasonable doubt is based upon

reason and common sense. It does not mean a fanciful or capricious doubt, nor


does it mean beyond all possibility of doubt…you cannot base your verdict on

mere speculations and conjecture as to what may have happened…You are to

consider all of the evidence... A fact may be proved by direct or circumstantial

evidence or by both. The law does not prefer one form of evidence over the other.

A fact is proved by direct evidence when, for example, it is proved by witnesses

who testify to what they saw, heard, or experienced or by physical evidence of the

fact itself. A fact is proved by circumstantial evidence when its existence can be

reasonably inferred from other facts proved in the case.” (See Union Ex. 28,

Transcript of State of Minnesota v. Joshua Burdine, File No. 30-CR-15-273,

Volume IV, p. 425-429. Hereinafter, Crim. Tr. Vol__ at p. __)

The arbitrator used that very approach in evaluating the evidence put forth in this case. The

arbitrator examined all the evidence, both direct and circumstantial, to determine whether the

Employer’s “just cause” burden was met. The arbitrator had to make credibility determinations

along the way. In doing so, it was necessary to reach some conclusions by way of circumstantial

evidence. In some instances, consideration of the strength of the direct evidence put forth and the

Union’s response was sufficient. For example, the Employer called eyewitness who said they

saw the Grievant commit the assault. The Union attempted, unsuccessfully, to undermine the

eyewitness testimony. Also, the Employer put forth circumstantial evidence to demonstrate that

the Grievant was the one who assaulted the victim. The Union offered an alternate theory but

was unsuccessful in discrediting the circumstantial evidence put forward by the Employer.

As noted above, proof can be established by the direct testimony of eyewitnesses and it

can also be established circumstantially. Sometimes this is done by finding flaws in the

competing narratives put forth by the witnesses. When considering the process used to evaluate

the evidence just described, it is not surprising then that some might confuse or find little

difference between the “clear and convincing” and “beyond a reasonable doubt” standards when

the work of evaluating the evidence is considered in this light.

The arbitrator, as the jury was instructed to do, also used “reason and common sense” in

considering what the eyewitnesses saw, heard, or experienced that night and when drawing

inferences from proven facts. The arbitrator’s focus, however, was on determining whether the

Employer provided clear and convincing evidence that it satisfied its’ contractual “just cause”

requirement. In doing so, the arbitrator took great pains to identify any evidence proffered by the


Union that demonstrated that the Employer’s evidence should not be relied upon. In other words,

casting doubt or blaming someone else doesn’t have the same level of importance in the arbitral

proceeding as it might in a criminal one. It was incumbent upon the Union to do more than

merely cast doubt or blame others. While it is the Employer’s burden to prove just cause, the

Union cannot simply sit back and say our version of the events is more believable. The Union

will need to demonstrate that the evidence put forth at the hearing by the Employer is simply

inadequate, unreliable, or just plain false. In examining the Employer’s burden to demonstrate by

clear and convincing evidence that it had just cause to discharge the Grievant, the arbitrator

applied the seven tests of just cause.

The Seven Tests of Just Cause

The seven tests require the Employer to show (1) the Grievant had notice of the personal

code of conduct policy and knew of his responsibility to adhere to its terms as part of his duties

as a correctional officer; (2) the code of conduct policy was reasonable; (3) that the investigation

into whether the Grievant violated the policy was fair; (4) the investigation was objective and

sufficiently comprehensive to support a finding that the Grievant engaged in conduct that

violated the policy; (6) that the application of the discipline to the Grievant was non-

discriminatory and (7) the discipline was appropriate and no mitigating factors exist that warrant

imposing a lesser penalty.

The Personal Code of Conduct & Its’ Reasonableness

The undisputed testimony and exhibits offered by the Employer demonstrate that it gave

sufficient notice to the Grievant and all correctional officers that “when on and off-duty, they

must conduct themselves in a manner that does not bring discredit or criticism to the department.

Common sense, good judgment, consistency, and the department’s mission must be the guiding

principles for the expected employee standard of conduct.” (Er. Ex. 3) The Grievant’s training

record shows that he received online training about the policy in 2012 and 2013. (Id at p.6-7)

The Grievant acknowledged during his testimony that he had in fact received that training.

Moreover, the Employer sent a memo to all employees dated December 27, 2010 that included

the following:

“As public employees—particularly because we work in the criminal


justice field – it is incumbent on all of us to maintain integrity and a professional

image. Our actions in the workplace and off-duty impact this agency’s credibility

with the public, courts, legislature, and law enforcement. The clear majority of

department employees are exceptional individuals and highly competent

professionals. Unfortunately, irresponsible and sometimes criminal behavior by a

few staff unfairly reflects on all of us. In an effort to clarify the department’s

standards for a professional workforce, I ask that you review the following

policies: Personal Conduct of Employees, Policy 103.220…” (Er. Ex. 3 at p. 9)

While, the Grievant claimed to have no specific memory of reading the memo quoted above, he

acknowledged during his testimony that he was employed on the date the memo was issued and

that it was his duty as a corrections officer to read all such memos distributed via the Employer’s

internal communication system.

The Union, rightfully so, did not challenge the reasonableness of the policy. Clearly, the

policy makes sense as was proved in this case. The victim’s father was an inmate in a different

correctional facility the night she was assaulted. The very next day, he called his daughter having

already heard the news that she was assaulted. When she asked her father if he heard or knew

what happened to her, he responded that he wanted to hear it from her. In other words, even

though incarcerated in a different city, he had already heard the news of her assault and wanted

to have his daughter give him her version of the events that night. More importantly, it was clear

from statements her father made during that recorded call that he was interested in exacting

revenge on the Grievant. (ER. Ex. DVD 1)

The policy, as can be understood from these facts, is reasonable because it is designed to

prevent the department of corrections from being placed in a negative light and to protect its’

employees from harm. To further illustrate just how quickly off duty, employee misconduct can

spiral out of control in terms of damaging the image of the department of corrections and

possibly placing other corrections officers in danger, another corrections department employee

submitted an incident report on March 30, 2015 regarding the fight outside of the Sidelines Bar.

Here is an excerpt from that report.

“My daughter…told me that …a girl she went to school with, was assaulted

outside a bar in Cambridge on Saturday night, 3/28/15, and was taken by

ambulance and hospitalized for her injuries. My daughter still lives in my home in

Cambridge. She and “the victim” were friends when they were in school and now


have some limited contact, mostly via text messages and Facebook. “My

daughter” told me that the person who had assaulted “the victim” was “the

Grievant”, a CO who works at MCF-RC. I wasn’t there and neither was my

daughter, so I don’t know how much of this is true. The photos of “the victim’s”

injuries are all over Facebook, including the name of the man who allegedly

caused them. I’ve seen the pictures; they are pretty graphic and show multiple

injuries to her face. I’ve also seen a ‘cut and paste’ from the Isanti County Jail

Roster showing “the Grievant’s” photo and booking information.” (Er. Ex. 2, p.

3)

The employee went on to say that she made the report because she knows the victim’s father and

knows that he comes from a family that will “go to great lengths to protect their own. (Id.)

The arbitrator finds that the Employer established with clear and convincing evidence that the

Grievant had notice of the policy and that the policy is reasonable.

The Investigation, Fairness & Proof of Wrongdoing

The Employer’s investigation consisted of interviews with the Grievant, his friend and

fellow corrections officer who was on the scene the night of the assault, two additional

corrections employees, a review of police reports including images of the victim’s injuries and

three eyewitness statements. (Er. Ex. 2, p. 13) The Union also provided the Employer with a

statement from the Grievant’s sister in which she admitted to assaulting the victim. The Union

attacks the Employer’s investigation as incomplete and unfair. The Union submitted a written

statement that included the following: “The investigation conducted contained no proof of

wrongdoing on “the Grievant’s” part…A police report is a collection of information and should

not be the sole piece of evidence.” (Er. Ex. 6, p 2-3) The Union’s claim is without merit for a

variety of reasons.

First, whether or not the police report was the sole piece of evidence, and it was not, the

police report contained three eyewitness statements that were all similar in that they identified

the Grievant as the person who assaulted the victim. Two of those eyewitnesses testified at the

hearing and both again identified the Grievant as the person who assaulted the victim. Their

testimony at the hearing was consistent with the written statements taken by the police the night

of the assault. The Union offered no evidence that even remotely suggested the eyewitness

testimony was untruthful or unreliable. One of the eyewitnesses (JJ), the former boyfriend of the


victim, was incarcerated at the time of the hearing and testified from jail. He testified that he was

giving his testimony voluntarily and then repeated the details he provided to the police the night

of the assault. Here again, the Union sought to cast doubt as opposed to introduce evidence that

undermined the eyewitness’ testimony that it was the Grievant who picked up the victim,

slammed her to the ground, climbed on top of her and repeatedly punched her. The Union’s

examination of JJ was indicative of the type designed to cast doubt as opposed to attack the

credibility of his testimony. For example, asking him how much he drank and whether he drank

as much as the victim was simply unpersuasive as a method of suggesting the eyewitness

testimony could not be relied upon.

The Union also attempted to cast doubt on the scope of the investigative work done by

the police officers called to the scene. However, a careful review of the squad car video shows

the officers did a comprehensive job of gathering information. In fact, at one point, the officer

who identified the three eyewitnesses, can be clearly heard saying that he had identified three

people who seem to be making sense. The officer said he dismissed the others, in short, because

they were incoherent. It is not surprising that many potential witnesses would be incoherent

following a night of drinking.

The other eyewitness (SG), who testified at the hearing, did not know either the Grievant

or the victim. He too, said he saw the Grievant hit the victim in the face and continued to assault

her. The representative of the prosecutor’s office who interviewed SG in July 2016, said SG

reported that he saw the Grievant punch the victim knocking her to the ground and that he kicked

her while she was on the ground. (Union Ex. 34) The Union did not offer any evidence,

testimony or exhibits that contradicted SG’s testimony. The Union simply offered an alternative

explanation, namely that it was the Grievant’s sister who beat up the victim. There was simply

no evidence offered to undermine the value and credibility of the eyewitness reports and it was

proper for the Employer to rely upon them as was demonstrated during the hearing.

As noted above, the police report was not the sole piece of evidence gathered by the

Employer in conducting its investigation. The Employer’s interview of the Grievant and

consideration of the Grievant’s incident report was also a part of that investigation. The Grievant


did not truthfully and fully participate in the investigative process as was required of him.1 The

Union cannot attack the investigation as incomplete or unfair when the Grievant can be shown to

have withheld information, changed his story, and done so intentionally.

The Grievant undermined the investigation by withholding information and revising his

story at each step of the process. The Grievant was not forthcoming even in the initial phone call

to inform his Employer of his arrest. As he testified, when he called his Employer from jail, he

simply attempted to call in sick. He did not offer up the fact that he was in jail until he was told

he could not call in sick for the number of days he announced and was directly asked why he

needed to be away for that amount of time. He then informed the Employer that he was in jail.

Even before calling his Employer, the Grievant had an opportunity to give a full account

of what happened to the police who arrived on the scene and who ultimately determined that he

should be arrested. The Grievant offered two different reasons why he did not give the police a

full account of what was going on. First, the Grievant said he did not know what happened

because he possibly suffered a concussion from the beating he took that night.

The Grievant also testified that he did not give a full account to the police because he did

not want his sister to get into legal trouble. These two reasons cannot as a matter of common

sense exist in the same space. Had the Grievant suffered injuries interfering with his memory of

the events that happened just minutes before the police arrived then it is difficult to believe that

he had sufficient wits about him to shape his story to the police in a manner designed to both

absolve himself of guilt and to protect his sister at the same time.

This reasonable doubt is borne out by the transcript from the police squad video. That

video proves the Grievant said he did not know what happened except that he was attacked. At

1 The Grievant’s own words demonstrate his lack of truthfulness. During the investigative

interview, he said: “I intervened with my sister because I did not want her to get into a physical

altercation.” Of course, this statement indicates his sister had not been in a fight with the victim.

After explaining the significance of the Garrity warning the investigator asked the Grievant if he

saw anyone else assaulting the Grievant. The Grievant answered; “No, cause like as soon as like

that happened I was hit…” So, the Grievant wants us to believe that he prevented his sister from

getting in a physical altercation and that he did not see anyone assault the victim. But, at the

hearing the Grievant said he watched as his sister beat the victim until it was clear the victim was

helpless.


one point, the Grievant had sufficient mental alertness, nevertheless, to instruct his sister to stop

talking to the police. Had the Grievant truly been suffering from a concussion, it is hard to

imagine him having a clear reason for wanting his sister to stop talking. The only logical

explanation is that the Grievant was clear-headed enough to make some critical decisions that

night as to just how much information he would give to the police and how much he would

withhold. He also did not want his sister to interfere with his decision by continuing to blurt out

statements that might later contradict his strategy. In short, he already had a strategy in mind and

was acting on that strategy when he decided not to share full details with the police.

The Grievant made the same decision when he completed the required incident report.

The incident report clearly asks the reporter to “completely describe the incident and action

taken.” (Er. Ex. 2, p.4) In pertinent part, here is what the Grievant said:

“When I got out the door they had moved across the street and at that point is

when I grabbed my sister in a bear hug and was telling her to walk to the car. At

this point the girl she was having an altercation with jumped on my back. At that

point, my sister pulled her off of me and I was started to be hit by fists and kicks

from 360 degrees. I fell on the ground and continued to receive punches and

kicks. I don’t recall being knocked out but was close to it as I was disoriented by

the punches and kicks. At this point I was on my back when “CT” came to my

aide and picked me up off the street.” (Id.)

So, now the Grievant’s story has more detail than he provided to the police but still was

not as detailed as the version he provided at the hearing of this matter. In other words, he

continued to withhold information from the investigator. The Grievant testified that he did not

give the investigator the full story because he did not think he had a duty to tell his Employer

what his sister had done. In short, here again, the Grievant intentionally decided to lie during the

investigative process. It is not surprising that an employee might feel worried about

incriminating himself and his sister by telling the truth. That is precisely why the Employer was

required to issue a Garrity warning to the Grievant prior to compelling him to truthfully testify

during the investigative process. The Grievant was given the Tennessen/Garrity Warnings,

explained the differences between the two and understood that nothing he said during the

investigation could be used against him in a subsequent criminal proceeding.

It was during that interview that the Grievant had his opportunity to give his Employer a


full and detailed account of what happened in his own words. After the Garrity warning, the

Grievant’s story is suddenly more detailed than when he spoke to the police and much more

detailed than the story he provided in the incident report. The Grievant was confronted with the

statements of the three eyewitnesses identifying him as the person who assaulted the victim.

After denying he hit anyone, the investigator asked how the Grievant thought the victim received

her injuries. “She was in a fight with my sister. My sister blasted her in the face. She hit her with

her purse several times…I believe the injuries came from my sister.” (DVD Burdine

Investigative Interview). During the hearing, the Union advocate asked the Grievant: “Would

you volunteer information that might get your sister thrown in jail if you didn’t have to?” The

Grievant responded: “Not if I didn’t have to. I asked myself, was it my duty to let my employer

know what she did?” The Grievant in other words, intentionally failed to tell the truth during the

investigation. The Grievant’s conduct undermined the investigation. The Grievant can’t omit

facts when asked directly by the police the night of the assault, omit facts in his incident report,

withhold information during the investigation, change his story during questioning by the

investigator, tell a different and more detailed version at his criminal trial and the hearing of this

matter and expect all those versions to be accepted as credible.

The Grievant’s decision to put forth multiple versions of the story makes it impossible to

assign truthfulness to any of his testimony. The Grievant admitted that he did not tell the police

the truth because he didn’t want to see his sister go to jail. He admitted that he did not tell the

investigator the truth because he did not have a duty to tell his employer what his sister did. At

the same time, the Grievant ask the arbitrator to believe that he omitted facts, when answering

the investigator’s questions because he was still suffering from the effects of having been beat up

on the night of the assault. However, the Grievant was apparently lucid enough while handcuffed

and sitting in the squad car to omit facts that might implicate his sister. He was also lucid enough

to discuss calling his employer with CT while handcuffed and sitting in the squad car. He was

lucid enough when being interviewed by the investigator to decide that he had no duty to talk

about what his sister did that night.

The Grievant testified during the hearing that had he known he would be fired, he would

have thrown his sister under the bus. The Grievant had to know that he could be fired for


falsifying his responses to questions during the investigation because that was explained to him

prior to questioning and he signed a statement saying he understood. The Grievant, in other

words, asks that he be believed after falsifying his incident report and investigative responses.

The Grievant also chose to blame the sheriff, the investigator, and the warden for intimidating

him, not being welcoming, and behaving in ways that made him not want to talk or tell them the

full story of what happened that night. The recording of the police speaking to the Grievant as

well as the recording of the investigator questioning the Grievant give no indication that he was

treated with disrespect. There is simply no evidence to suggest the Employer should not have and

could not have relied upon the information contained in the investigative report. The arbitrator

finds that the Employer demonstrated by clear and convincing evidence that the investigation

was fair and complete.

Before moving on, it is important to address the issue of whether the Employer met its

duty to demonstrate that the Grievant engaged in misconduct. With respect to this aspect of the

Employer’s burden, the arbitrator accepts the testimony of the two eyewitnesses who testified at

the hearing as direct evidence of the Grievant’s misconduct. The Union failed to offer any

evidence to refute that direct evidence. The Union called the Grievant’s sister and friend as

eyewitnesses who could offer testimony as to what happened that night.

As noted, the Union offered the testimony of the Grievant’s sister as proof that the

Grievant did not assault the victim that night. However, the Grievant’s sister’s testimony suffers

from the same lack of credibility as his own. Specifically, the Employer demonstrated that the

Grievant’s sister’s story changed, contained untruths, and could not be relied upon. Setting aside

for the moment, the fact that the Grievant’s sister said to the police that night that she would do

anything for her brother including taking a bullet for him, it is painfully obvious that the sister

simply did not tell the truth.

First, the Grievant’s sister testified that she admitted to the police that night that it was

she who assaulted and caused the victim’s injuries. Here is a portion of the Grievant’s testimony

from the Grievant’s criminal trial demonstrating that she did not admit to assaulting the victim

when asked by the police.

Q. Now you testified that you were engaged in some sort of fight outside with


“Victim”?

A. Correct.

Q. Going to what you said on the squad video that night, you were asked …

the Officer Gross talked about the extent of “Victim’s” injuries, or the girl, she’s

referred to as some girl, and all you indicated was “I hit her with my purse trying

to get her off my brother.”

A. Correct.

Q. That’s all you said you did; right?

A. Right.

Q. You didn’t say you punched her, you didn’t say you hit her or anything like

that that night, did you?

A. No.

Q. And, in fact, you say, “So how she got punched or beat up, I don’t know”;

right?

A. That’s what I said.

Q. But here your testimony is that you’re the cause of how she got punched

or beat up?

A. Correct. (Crim. Tr. Vol III at p.361-362)

Further examination of her statements to the police that night show exactly why her

testimony offered during the hearing lacks credibility. The Grievant’s sister testified that the

officer on the scene did not want to talk to her to find out her version of what happened. In fact,

the office spoke to her for over 23 minutes asking numerous questions and trying to discern

exactly what she witnessed. The police squad video clearly shows the Grievant’s sister

speculating about how the victim received her injuries but not taking responsibility for the

assault. When the officer explained to the Grievant’s sister that he would be arrested, she did not

admit to the assault but asked the officer to gather more witnesses. The only time she comes

close to saying she hit the victim at all was when the officer asked how the victim got the huge

goose egg and she responded: “That’s because I hit her with my purse trying to get her off my

brother.” (Er. Ex.10 at p. 5, line 16) The Grievant’s sister was either lying to the police or lying

when testifying at the hearing of this matter or both. It is those major inconsistencies that render

her testimony completely unreliable. A sampling of the transcription of the police squad video

makes this point more clearly.

JP: And then we came out of the bar and she kept screaming names and I just kept

walking away. And then her, the other girl, I don’t know who she is.

KG: What did she look like?


JP: Uh, she has short blonde hair, some white big earings (sic) in her ears.

KG: Ok.

JP: Her and like four, five dudes come back with my brother.

KG: Ok.

JP: And so I go there to try to get my brother out of there.

JP: And drunks gotta be drunks. I’m a happy go lucky drunk but. I’m not about to

let myself get beat up so.

KG: Yep…

KG: There’s some girl that has a huge ass goose egg.

JP: That’s because I hit her with my purse trying to get her off my brother.

She jumped, ok, can you just turn around? I’m not gonna hurt you.

KG: Nope. I’m not going to turn around

JP: (Inaudible) I’ll turn her around. They jumped, jumped my brother like this and

tackled him to the ground.

KG: (Inaudible).

JP: And pushed his glasses off. And he was trying to defend himself to get off and

I was hitting them with my purse and then.

KG: (Inaudble) female?

JP: Some dude came after me. I don’t know what dude cause there was like 8 of

them.

KG: There was a group of people.

JP: It was a group of people.

KG: I understand that.

JP: And he came at me, punched me in the face and then I took my, I took my

(inaudible) off (inaudible). You wanna, you wanna, you wanna go? And they’re

like, woman abuser. Really? He was protecting himself.

KG: But how does she get a huge goose egg and she’s bleeding perfusely (sic)?

JP: That I don’t know cause she tackled my brother on (inaudible).

JP: My brother was on the ground surrounded by dudes.

KG: Ok.

JP: And this girl. So anybody could have hurt her, punched her. And I will tell

you right now, I had my purse and I was swinging. (Er Ex. 10, Emphasis added)

The Grievant’ sister told a very different story when testifying during the criminal trial.

In pertinent part, she testified as follows:

A. “She (victim) lunged at me again, I grabbed her with my – I had my right hand,

I grabbed her by the hair and then I just started punching her.

Q. With your—

A. With my left hand.

Q. Are you left-handed?

A. I’m left handed.

Q. How many times did you punch her?


A. I don’t know exactly, three four, five times maybe. (Crim. Tr. Vol III at p.349

lines 14-22)

Again, the Grievant’s sister claimed she did not know how the victim got her

injuries when speaking to the police officer the night of the incident. She actually

speculated that the victim could have gotten the goose egg from being hit by her purse as

she tried to rescue her brother from the bottom of the pile. The Grievant’s sister was

swinging a purse the night of the incident but by the time she testified at the criminal trial

both her hands were free and she could grab the victim by the hair with her right hand

and repeatedly punch her with her left. It is these types of inconsistencies that require the

arbitrator to conclude that the Grievant’s sister’s testimony is completely unreliable. The

only testimony that withstood scrutiny was that of the eyewitnesses put forth by the

Employer during the hearing.

Finally, the Union called the Grievant’s friend and co-worker, CT, as an eyewitness. Just

as the Grievant and his sister’s stories changed over time, so did CT’s. CT also completed an

incident report that asked him to completely describe the incident and action taken. Here is what

he said:

“While attempting to exit the establishment a verbal argument started between

(Grievant’s sister) and an unidentified individual. We made our way outside

where (the Grievant’s sister) and I were again approached by the same

unidentified individual. A physical altercation started in between the two and

worked its way into the street. In an attempt to de-escalate the situation (the

Grievant) and Myself stepped in between the two individuals and separated them.

Once I had removed (the Grievant’s sister) from the immediate area, I looked

back and noticed (the Grievant”) on the ground with multiple individuals over

him, and physically assaulting him. (The Grievant) was able to flee from the

assaulters and make his way across the street.” (Id at p. 2)

At the trial, CT tells a drastically different story.

“They lunged at each other, the (Grievant’s sister) grabbed (the victim) by the hair

with her right hand and started laying upper cuts to her, hitting her in the face. At

one point in time, (the victim) had kind of like stumbled to the ground, I wouldn’t

say she was dropped to the ground, but the (Grievant’s sister) had kind of picked

her back up and continued to hit her in the face. I won’t going to jump in on it

right away because, you know, stuff needs to be handled, but, not handled, but


you know, I’m not going to jump in and try to solve other people’s issues. Once it

had gotten to the point where (the victim) could no longer defend herself and the

(Grievant’s sister) was overtaking the situation, it wasn’t safe for her anymore,

nobody else was stepping in…there was probably at least ten, 15, if not more

people that were directly right in front of the doors. Nobody else was stepping in.

Everybody else was just watching it. So at that point in time I had seen (the

Grievant) and at that point in time, like I said, the (Grievant’s sister) had gotten

the upper hand and this (victim) was unable to defend herself, it had gotten out of

hand, so me and (the Grievant) stepped in. I grabbed the (Grievant’s sister) and

(the Grievant) had stepped in and was walking the victim away.” (Crim. Tr. Vol

III at p. 312-313)

In other words, CT failed to include in his report to the Employer that he stood by and

watched someone he had spent the evening drinking with beat a woman senseless before

deciding the situation was out of hand and stepping in to stop the assault. His report to the

Employer gives the impression that he intervened prior to the victim suffering any injuries.

When asked at the hearing of this matter why his report to the Employer left out so many details,

CT responded that he thought those details would be provided by the Grievant. The report form

clearly requests a complete statement of the facts. Therefore, CT did not follow instructions and

had no right to simply assume the Grievant would provide the details. CT’s incident report, if

believed, makes it appear that neither the Grievant nor his sister caused the victim’s injuries and

that he and the Grievant simply used their extensive training to de-escalate a potential physical

altercation. Of course, even if we accepted the version of CT’s story as told at the Grievant’s

criminal trial, then we would have to conclude that CT left out critical details from the incident

report to also protect himself.

The personal code of conduct policy, among other things, is designed to protect the image

of the Department of Corrections. CT would have to admit that if he told his Employer he spent

the evening drinking with the Grievant and his sister and then watched as the Grievant’s sister

beat a woman “until she could no longer defend herself” then he too could have been subject to

discipline under the policy. Of course, the notion that CT and the Grievant were motivated by

concern for the victim falls far short of the truth. CT said, as noted above, he was willing to

simply let them fight. “I’m not going to just jump in and solve other people’s issues.”

CT, in other words, left out critical facts regarding what happened that night in his


incident report to the Employer, knowing that his report would be a part of an investigation

conducted by the Employer. In doing so, CT misled the Employer. Furthermore, CT did not give

a statement to the police the night of the Grievant was arrested even though he clearly could have

done so. However, when he finally went to the police to provide a statement, he claimed that the

police on the scene did not want to speak with any of them “even though we had his sister sitting

there the whole time going hey, but why aren’t you taking me…I’m admitting to it.” As shown

above, the police spent a great deal of time patiently listening to the Grievant’s sister’s story and

she never uttered those words and never admitted to assaulting the victim that night. There are

numerous major inconsistencies, in other words, across the various versions put forth by the

Grievant, his sister and CT. As a result, the arbitrator finds their differing accounts to be both

self-serving, false, and unreliable.

Most importantly, the mere fact that both the Grievant and CT failed to file complete and

accurate incident reports, in the arbitrator’s opinion, means they both violated the personal code

of conduct policy which requires them to not falsify documents, misrepresent facts or

information relevant to department/state operations and to cooperate fully in any department

investigations involving employee misconduct. (Er. Ex. 3, p. 3) Having failed to comply with the

requirements of that policy, the version of the events as put forth by the Grievant and CT simply

cannot be taken as credible. Consequently, the only credible evidence was that of the

eyewitnesses called by the Employer during the hearing. Those eyewitnesses credibly identified

the Grievant as the person who assaulted the victim.2 Consequently, the Employer demonstrated

2 The arbitrator is mindful that the testimony of the victim has not been discussed. Even

without the victim’s testimony, the arbitrator finds that the Employer demonstrated clear and

convincing evidence of that the Grievant was the assailant. The arbitrator also found the victim’s

testimony persuasive and useful in drawing inferences based on facts in evidence. For example,

the Grievant could not identify the person who assaulted her when interviewed by the police

officer while she was hospitalized. However, she was absolutely steadfast in her testimony that it

was a male who attacked her. So, even though in great pain and badly beaten she told the officer

that same night: “And all of a sudden some random guy came up and body slammed me on the

street and repeatedly hit me over and over again.” (Union ex. 33) The victim, unlike the

Grievant, his sister and CT, did not have an opportunity to come up with a storyline or

coordinate with anyone before being interviewed by the police that night. She was clear that she

did not have any contact with the Grievant’s sister and explained she thought the Grievant


by clear and convincing evidence that the Grievant violated the Personal Code of Conduct.

Appropriateness of the Discipline and Reasonableness

As the Grievant acknowledged during his testimony at the hearing, anyone who assaults

someone should lose their job. The Employer demonstrated that it has discharged several

employees for violating the Personal Code of Conduct policy. (Er. Ex. 9) While we do not know

whether those discharges involved assaults outside a bar after an evening of drinking, the

Employer did demonstrate that it announced in 2010 its’ intent to more vigorously enforce the

personal code of conduct policy, particularly regarding employees who are subject to arrest,

criminal investigations and the like. The December 27, 2010 memo specifically states that:

“In the past, policy violations regarding criminal activity were typically reviewed

for determining the appropriate corrective action after final disposition of the

case. This process has changed in recent months. Employees who are the subject

of criminal investigation(s), arrest(s), and/or Conviction(s) will be subject to an

internal investigation and possible corrective action once information regarding

the policy violation is received by any supervisor or human resources. Thank you

for your ongoing efforts to understand and uphold department policies and fortify

our reputation as a professional workforce.” (Er. Ex. 3, p. 9)

The Union offered no evidence to suggest the Employer treated similarly situated

employees differently or that discharge was an unreasonable response. The Union offered

evidence that more directly goes to the question of whether the arbitrator should nevertheless

impose a lesser form of discipline. For example, the Union had the Grievant testify about his

performance reviews and the positive comments included therein. The Union also argued that it

was important to retain a 12-year employee with the Grievant’s background and training.

However, carefully considering the evidence submitted at the hearing by both sides that paint a

more complete picture of the Grievant’s work record, the arbitrator can find no basis to impose a

lesser discipline. While the Grievant does have several evaluations showing meeting standards

and several with positive comments regarding his performance, there are two troubling themes

that standout when examining his work record. Those two themes are truthfulness and ability to

attacked her because of his sister. When the victim’s account is lined up side by side with that of

JJ and SG, the accounts are very much consistent with one another. The same cannot be said if

the same exercise is carried out with respect to the Grievant’s, his sister’s and CT’s numerous

accounts.


manage his emotions in difficult situations. The Employer demonstrated in the processing of this

grievance that the Grievant was not truthful. The Employer also demonstrated that the Grievant

has lied to his Employer at other times as well. For example, in 2014, during a criminal

background check, the Employer discovered that the Grievant had not reported two misdemeanor

charges brought against him years before. The charges were that the Grievant engaged in

obscene, lewd, and harassing phone calls. (Er. Ex. 7) In 2012, the Grievant requested and

received leave to assist a family member but was discovered by way of a Facebook posting,

playing baseball that same day. (Id.) The Grievant blamed much of his unprofessional conduct

on the fact that he was going through a divorce at the time. Obviously, going through a divorce,

particularly with minor children’s lives to sort out, can be a very difficult situation. However, it

is in the most difficult situations, such as those faced regularly by corrections officers, that it is

critical to maintain a professional demeanor. The Grievant’s wife was also a corrections officer

at that time. The Grievant was disciplined for making harassing phone calls to her and in doing

so violated a direct order. He also made threatening remarks to a co-worker. (Id at p. 2-3) Again,

the only purpose of examining the Grievant’s work record here is to determine whether the

disciplined should be reduced. The arbitrator can find no basis for doing so.

Award

The grievance is denied.

Respectfully submitted

______________________

A. Ray McCoy Dated: July 15, 2017

Arbitrator

Documents

IN THE MATTER OF ARBITRATION BETWEEN Employer, OPINION … · IN THE MATTER OF ARBITRATION BETWEEN _____ State of Minnesota Department of Corrections MCF-Rush City Employer, OPINION