Attorney Hykel Persuades Arbitrator to Reduce Fire Fighter Suspension By 75 Percent

A neutral arbitrator agreed with Attorney James Hykel and
IAFF Local S-28 that
the Fire Chief improperly relied upon prior reprimands in suspending a veteran fire fighter for 42 hours. He reduced the suspension to eight (8) hours and ordered that the old reprimands be expunged from the personnel file.

The arbitrator agreed that the fire fighter was improperly incommunicado during medical leave and was required to have affirmatively communicated with the Department. His actions, or rather failure to act, justified some level of discipline. But the fire fighter's misconduct did not excuse the Department's reliance on discipline expressly prohibited by the collective bargaining agreement.

Just cause generally allows an employer to consider disciplinary history in determining the discipline to be imposed. Sometimes, as here, contracts provide that discipline cannot be considered for progressive discipline after a specific amount of time.

The applicable contract clearly required that reprimands dissolve after the fire fighter is free of discipline for 2.5 years old. The Department defied this language and relied upon multiple reprimands several years old in imposing a 42-hour suspension here. The arbitrator agreed with the Union that this was improper. (He found that the contract did not prevent the Department from considering a 2011 suspension).

Because the Department's suspension was based largely upon discipline it was prohibited from considering, he reduced the suspension to eight (8) hours. He ordered the Department to make the fire fighter whole and remove the stale discipline from his file.