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A look at the arbitration ruling

The outcome of a lawsuit between Teamsters Local 346 — the union representative of Crosby Police Department sergeants and patrol officers — and the city of Crosby and Crosby Police Chief Kim Coughlin has come to a close after about a year-and-a-half in mediation.

The result is Sgt. Jesse Smith will be reinstated into the police department through an arbitration ruling from the Minnesota Bureau of Mediation Services. However, Smith’s title will be officer, not sergeant.

According to the arbitration ruling, the lawsuit stems from when the city and the union were engaged in collective bargaining for a new labor agreement during the summer of 2012. Involved in the negotiations were council members Ed Vukelich and Elizabeth Hofmann; and the grievant (Smith), who was the union job steward, Union Business Agent Les Kundo and three other police officers.

In a negotiating session on July 31, 2012, Smith requested a pay raise for the sergeant’s position as he was doing most of the departmental investigations. The council members thought investigations were handled by the captain. When discussing job duties, Kundo indicated it was inappropriate to discuss the job duties or performance of the captain in negotiations.

Following a bargaining session on Aug. 8, 2013, Hofmann and Vukelich requested job descriptions for both the captain and sergeant positions. While the city alleges that Smith was critical of the captain’s job performance during the meeting, statements taken by the city’s external investigator, Justin Churchill, including those from Hofmann and Vukelich, fail to support the allegation. Testimony indicated no criticism or allegations initiated by Smith of poor job performance by the captain.

According to the testimony of Kundo, supported by his bargaining notes, Smith actually opposed the proposed elimination of the captain’s position indicating that such an action would not be well received by the chief.

Some city council members were considering elimination of the captain position as a possible cost saving measure. The council discussed eliminating the captain’s position at its Aug. 27, 2012 meeting.

The document said, “This sentiment certainly would have been exacerbated by council members Hofmann and Vukelich concluding that the sergeant and other police officers were actually conducting the investigations which council had misunderstood were all to be conducted by the captain.”

Vukelich directed Smith to provide him a copy of the sergeant’s job description.

“Smith clearly edited the sergeant’s job description by adding a page of additional duties prior to giving the description to Vukelich. Smith testified that he needed to update the description to accurately reflect the duties being performed, did so and passed it by the captain for approval before bringing it to Vukelich. The chief was out of town at the time and the captain simply assumed that Smith had been requested by the chief to update his job description. The captain apparently had no knowledge that the job description was intended for the council. Accordingly, he testified that he gave it a cursory review and returned it to Smith without comment. Whether or not he ‘approved’ the additional duties is a matter of perception. However, his testimony at the hearing indicated that he agreed that the sergeant did perform most of the additional duties listed.”

It appears that the council’s controversy over the duties of the captain and what work he actually performed resulted in a rumor that the council was considering adverse action against the captain.

Coughlin testified that she first learned of this controversy from an “unknown citizen on the street” on Aug. 27, 2012. She immediately contacted both Vukelich and Hofmann in an attempt to ascertain exactly what was being proposed and why, and was apparently able to prevent any immediate action being taken by the council. She then determined that a formal investigation was necessary, placed Smith on administrative leave, and referred the matter to Deputy Chief Justin Churchill of Mille Lacs Tribal Police Department. Coughlin contacted Churchill on Sept. 6, 2012 and requested a general internal investigation focused on the incidents and a determination of whether a violation of the chain of command had occurred.

A three-person disciplinary panel reviewed the statements gathered in the investigation and found 10 of 18 charges of misconduct against Smith. Following a hearing on Jan. 10, 2013, the panel issued a demotion notice to Smith for nine of the 10 sustained charges and recommended termination for violation of the 10th charge of untruthfulness. Smith’s termination was confirmed by the city council on Jan. 28, 2013.

The document states the union took the position that comments attributed to Smith were used as support for his alleged violations were made during union negotiations and that union stewards like Smith are immune from discipline related to their conduct in the course of union business. The union argued the facts relied upon to sustain the violations are not clear and that the investigation conducted on behalf of the city was not fair and objective; that the city inconsistently applied discipline; that Smith’s discipline-free work record was ignored; and that the city made no attempt to progressively discipline Smith.

In the end, the arbitrator found that the penalty of termination “was excessive and not for just cause.”

The document states: “Grievant’s undisputed prior record of superior performance as a police officer for the city. It is doubtful, based on the record, that either the disciplinary panel or the city council gave full consideration to this record in sustaining his discharge. Indeed, at least one member of the disciplinary panel testified that he didn’t even recall reviewing grievant’s record of employment with the city. Given the extreme penalty of termination, the arbitrator finds that the grievant’s exemplary prior record of performance cannot be, and should not have been, overlooked.”