city Qf DeS Plaines

and
t.[iJiP,Jlia,x\e of Pql ie i
No. 4\\.0
1)at" of Award: 3, 2013
For the City:
.'J.
'"i,
, opinion. i;1.r\q AWarq
ipy
Arpit:tato:t
P(;lt(ltlfEiuill(l
;itl
FM<7.sl'/<j,
ToM Bu,eMgt'ievane)
Ms.
Ms.
Mr.
Ms.
'Mr.
,Mr.
Yvette Heintzelman, Clark Bair.d smith IiL]?, Attorney
Mellssa Schilling, Clark Baird sinith LL]?, Attorney
Michael Bartholomew, City Manager
Mr.
Angela Burton, retired beputyChi'ef of Police
.1asonSlowinski, former Acting City Manager
William Kushner, Chief of Police
Brandt Gappitelli, Elmhurst Police Offioer
For the Union:
Mr. Keith A .. Karlson, Reimer & KarlsonLLC, Attorn""y
Mr. JeffreyT. Theriault, Reimer & Karlson LLC, Attorney
Mr. John Bueno, Grievant
Mr. Richard Tracy, MAp
Mr. William Prim, retired Police Commander
The Metropolitan Alliance of P<;Jlice, Chapter lila. 240
,(Uul'lion"l <:tl'ld the City (jf D"'13 p;taines("City,kUErnPloyer, ") have
taken belOW' to a;r,[Jitgti<m (City Et.}1iPit
1 ("C 1")), By ffiJlj:JlaJ. ",gre(lwel'ltthepaJ:'ti.Ej\s .l!el<;\ .;;;n arpitratiqh
.l!earin.9 ()):1 ])JbV\3nlPEir 29, December i:t" and POCEH)lPer 12, 2012 in Des
l?l'lin<!s, IL, lI,tt::4i.s hearing .both siqe$ We:!;'Ei q;bl(lt6 pr$sMt all
tl1eeviqEihcEi aPPl;'Dpl;'iate; Allt.'El13timony Wils taken
under oath. The hearing was stenographically recorded and a
transcript was produced. The parties waived oral closing
arguments and filed post-hearing briefs. with the Arbitrator's
final receipt of these briefs on February 14, 2013 the record in
this matter was closed. I am grateful for the parties' courtesy
regarding the amount of time needed to prepare and issue this
Award.
THE ISSUE
At the hearing the parties stipulated that the issue
presented for resolution is:
Did the City have just cause to terminate Officer John
Bueno in March 2012? If not, what is the appropriate
remedy? (Transcript, page 41 ("Tr. 41".
The parties also stipulated that this matter is properly at
arbitration (Tr. 41).
BACKGROUND
2
The City's administrative structure includes the Des Plaines
Police Department ("Department"). The Union is the exclusive
collective bargaining representative for a bargaining unit of all
sworn police officers in the Department (Joint Exhibit 1 ("JX
1". The Union and the City ("the parties") have a collective
bargaining relationship, and they are parties to a collective
bargaining agreement (nCBAn) covering the period January 1, 2008
through December 31, 2011 (CX 1), which by extension includes the
period when the instant grievance was filed (JX 2). Officer John
Bueno ("Grievant") worked as a Police Officer for the City since
3
April 1, 2002 (Union Bri!'>f, pag!'> 7 (JlUn.Br. 7");" City Brief, page
4 ("C.Br. 4", apd at all pertinent tim!'>s in this matter he has
be.en a membe):' of tn!'> bargaining unit represented by the Union.
During part of nis !'>mployment with t.he City, t.he Gri.evant
twide was assigne<:l to the Delta unit in the Investig;3.t.ions
DivisiOn. The Delta unit is a Small grO\lP of officers who work
as an Undercover narcotics tactical unit to fight narcotics
trafficking (Tr. 43). pelta unit menjbers typically wo):'k in
plaihlothes. During the periods May 2006 through August 2007
"nd J1H!ui;.ry 20()9 until August 2010 the Gr:i.!'>vant WaS assign!'>d to
t.he Delta unit (CX 5, pp. 10-121 C.Br. 5).
In or about. JUne 2009 th!'> Grievant had an encounter wit.h gn
arrest.!'>!'> nant!'>d in _ c!'>ll at t.ne C!Lt.y polio!'>
stat.ion, which will b!'> d:lscuss!'>d below, On or about J"nuary 20,
2010 the Grievant nad an encounter attn!'> City police station
with an arrestee named __ , which also will be
discussed ):)e10w:.
Also in January 2010 th!'> Grievant, who was working
arranged to set. up a drug buy from
a reputed drug d!'>aler. 1'his <:lrug buy w.as
supposed to occUr on in a parking lot. near a
restaurant located near the intersection of_
in D.6S Plain!'>s. Th!'> Gri!'>vant drbve to t.his
parking lot accompanied by _. _ drov!'> into the
parking lot and park!'>d his car n!'>xt to the Grievant. Oth!'>r De1t.a
Unit. officers present st.arted converging on __ car.
_ observed t.his and decided to depart., which he did by
driving away at high speed. In his haste,_ almost hit
Delta Officer Brian Hart. Soon after this failed drug I;>uy, the
City obtained an arrest warrant for _ on a charge of
aggravated battery (ex 2, p. 1; ex 5, pp. 65-67). On Angu/'it 12,
201'0, city of Elmhurst police officers etopped_:t;or i'\
traffic vio1i'\bi,on. The Elmhurst officers learned of' the pes
P1_aines arrest; warrant fo.1;' _ and theyarrest",U hifi),and
placed hi)lt in cu"tody. Duritlg t118 eVening of l\,ugllst; 12 i 2010 i
the Grievant and O:t;ficer 1\.p<;ly Qontrer!ls W)re dir,ected todi;i,Vt;! a
squad car tQ Elmhurst for the pUrpose of picking lip _ from
the ElJljhurst Po ah<;l tranl'lPorting_ l:>iliJl). to DeE; Plaines.
Tile Griey",nt an(i Cont:,reras dJ:'ove to E1tnhu:cst, picl).ecl up _
'-
and transport<:lclllilit l:>apk, to Des Pi",ines ,on August :1,2, 2010.
About a year later" on August Q, 2011, Acting City ManqgeJ;'
(fa$on SlowinEiki ("Slowinsl).i") receiv",d a letter fro.m Reitll Hurtt,
to fQ.rmer Depl1ty Clli".t RiQ);iq:rd RQzkuEizl).i1, allegin<;:r thl;t
tile GJ:'ievi1rtt had "pruti111y beaten"seveJ;'alarrestees, including
_ (Tl:'. 136-128;CX :i!). SlQwinskitestifiEld that this was
t11,e fir",t tiJne hElkn.ewiJJ:)o.l1tt);ie G-r ievant' Eiuse OffQrce i'lgainst
arrestees (Tr.:B27). SlQwii:)ski selected Oepl1ty Chief Angela
13l1rton ("J;lurton")to conduct: art investigation into. t);ie
a11egation$against the .G;t'ievarlt (Tr. 327).
131'\1'ton p:t'oceeded tpconiil1ct an inyestii.gil;tion into thE)
Gri.vant's USe of fQrce q:gainst the iJJ:)ove-named arr-estees,
inclUding e.l;,i1miiling police repm:'ts i1nd booking photos, conducting
site visits,aildinterviewing $evera1 members of the Department
5.
(CX Z;Tr. 56-57.). AtthecwnclusioIl 91'. her investi.gatibh,
BJrttonpr.;;piirElti<'! report "pecifying her findings anti
recbrtJlnendatibhB (GX 2).. F<;>:t: reqsoh!3 that wHl pe examined 1,,,.l:;e1:',
Bl1rtoncoIlc1udEjo tlicltthe G:t:ievant u$ed eXbE:lssive :Eor.CeMainl3t
_ (in or ap!?wt JllneZ009h _ (in J",nuary 2010), .and
esp$cially (in A\1g'ust 2QiO), a.nd she r.eoomntElnded to
Slcnr;i.:i)l3kitha.t fuglt;lPle Ch1\;r'ges Q;Erple$ viblation$ agaip",t th."
Gr;i.evi.lilt b'i $usta.iIled(CX 2, p. Hi). j3urtb)1 doni,11Pl",d tliat the
allElgationag'alil$t thi3 Gr;i.ey<'!nt regardiIlg __ WgS
Hpnfolmded" err .186) .
In turn, S19wiil$ki reviewe4 Bprton' l3:E:tndin.g'13 (It
slpwinl3k;i. CQndl)lded that the GrieVant I3hOllld be ter)l)iIl",t$d :ft'{jfu
C;i.tyemployment (Ir . .3.34),,,,nd Slowinski filed", oofuplaint with
the City of Pe$ Plaini3s Board of Fire and Police Comfuissioners
(HBFPCU) seeking the. Grieva.nt's tertnina.tioh(CX 7, II:. 38-40,
3.34). A", will be disoussed below, slowin$ki also c.bncluaed th",t
Offioer Andy contreras, the Grievant's partner during the August
12, 2010 inoident with __ , should be ter)l)inated(Tr.
.
The Grievant waived his right to a hearin<;r before the. l3FPC
and chose to pursue an appeal through grievance arbitration as
provided in the parties.' CBA (JX 1). the Cit:)' terminated the
Grievant in March 2012, and the parties agreed to move the
instant <;rrievance directl:), to arbitration.
In contrast, the City did not terminate Officer Contreras,
and insteadlfeached a "last chance employment agreement!'
settlement with him (eX is). Contreras, the City, and the Union
6
ag:J;'E;!E;!d to (a) a $ul3pension for Contreras, Ch) a
year "la.stchande pet;lod'! fOl:' 11im stal:'1::ing in March2()12, (0)
t.)iatG.ontl:'i'ltIlS' col1duot du:dng the trC\n$pqrt 0:E _ pack to
Des ..s On Aug\lst 12, 20.1t) W<J.Ssufficiemt to Wikrrapthis
terfuinatibrt (el( 15), and (d) Gqn1:;l::!'ll:'!1S ba$ :Peen if;LLbWed to
c;!dntinu(l )cds employm(lnt i;J,Il <J. PoliOfjOfficer for t.11e city, subject
to the. H'L<J.St OhMc(l periOd" 6nditions (ex 15) ,
Seotion 1.1
P);tQYISIPNS (OX 1)
ARTICLE IREC0GNI'.I.'tON
Recognition
.:E)ie City reoogtibepthe C)iaptel:' [pic] t:he pqlE;!and E)xO.1u$ive
ba,ri;l"i>ini
l1
\! a.ge.nt w;i.thre,:;)pectt6 wC\ges /)iom:'$ ilndcrtaip oth,r
conditions of emp;Loyrttent for all full timePolide Officers, .
Section 1.3 ManagenlentRights
Except to the .extE;!ntezpl:'esslY abridged by a specific
provipion of t11is A9reelrtej)t, t11eChaptel' l:'eogniZesa,n.d agres
thi'it the City reserves. and .. ret6ihs, solely ahdexcl\lsively, a1'L
of itp rights to. managet11e affairs o.f the City i as p\l.ch rights
.existed pdor t.o. tne e:i<eou'tion. Qf this A9tl'leme.ht With tne
Chapter .. The )901e and .e;>tolu,,,iver'ights,i'\iVlrel?Po.tiiiil:>i:u.ties pi;
management whioh are not abridged by t11is 1lcgreementsh<J.ll
include, but are not limited to, the right t.0 .. make ahd
enf01;ce reaponabTe rulep:; t.o. suspend, diseha<'ge o.r Qt)iel'wise to.
take suchme.asure.s as the Citymaydete.rmine to. he nec.el.'isary tor
the orderly, safe and efficient operation of the City and its
several departments.
AAT!CLEi V GR!IllVANOE PROCEDUREi
Beotion .5.1. .ProoeduJ:1e
-. ..
STEP 5. In the event the .griev.ance has no.t been
sa1oisfactorily .settled, the grievance may be pubmitted to an
impartial arbitrator.
7
Awards of the arbitrator shall be final and binding and
shall determine the subject of the arbitration for the duration
of this Agreement. Jurisdiction of the arbitrator shall be only
in regard to the particular dispute before him, and he shall have
not power or authority to add to, subtract from, modify or change
in any way any of the terms of this Agreement, or to write any
new clause, change an existing clause, or write a new Agreement,
nor shall he establish wage gcales, change any wages or rates of
pay. The arbitrator shall have no power to pass upon any subject
not specifically provided for in this Agreement or any function
that belongs to the City or its designated management as provided
for in Article I, Section 1.3. If the grievance concerns matters
not covered by this Agreement, it shall be returned by the
arbitrator to the parties without decision.
Section 5.4 Board of Fire and Police Commissioners
If the grievance concerns discipline in excess of a five (5)
day suspension or discharge for cause, the employee must elect
with 21 days whether to proceed before the Board of Fire and
Police Commissioners or to proceed through the grievance
procedure.
In the event the employee elects to proceed under the
grievance procedure, he shall indicate in writing his choice and
specifically waive any right he might otherwise have to proceed
before the Board of Fire and Police Commissioners or to proceed
to court to review a decision of the Board of Fire and Police
Commissioners.
APPLICABLE RULES AND REGULATIONS (eX 4)
GENERAL ORDER 2.01 RULES OF CONDUCT
310.02 Unbecoming Conduct ~ An officer or employee shall
conduct himself at all times, both on and off duty, in such a
manner so as to reflect most favorably on the Department.
Conduct unbecoming a member or employee shall include that which
tends to bring the Department into disrepute or reflects
discredit upon the individual member or employee as a member or
employee of the Department.
310.34 Obedience to Law and Regulations - Officers and
employees shall observe and obey all laws and ordinances, all
rules and regulations of the Department, and all official written
directives of the Department or Division thereof.
310.36 Reporting Violations of Laws, Ordinances, Rules or
Orders - Officers and employees knowing of other officers or
employees violating laws, ordinances, rules of the Department, or
disobeying orders, shall report in writing to the Chief of Police
via official channels. If the officer or employee believes the
information is of such gravity that it must be brought to the
immediate personal attention of the Chief of Police, official
channels may be bypassed.
380.60 Impartial Attitude - All officers, while charged with
vigorous and unrelenting enforcement of the law, must remain
completely impartial toward all persons coming to the attention
of the Department. Violations of the law are against the people
of the State and not against the individual officer. All
citizens are guaranteed equal protection under the law.
Exhibiting partiality for or against a person because of race,
creed or influence is unprofessional conduct. Similarly,
unwarranted interference in the private business of others when
not in the interests of justice is unprofessional conduct.
390.50 Truthfulness - Officers and employees are required to
be truthful at all times, whether under oath or not.
409.00 Who Is Subject to Disciplinary Action - Any officer or
employee violating his/her oath and trust by committing an
offense punishable under the laws or statutes of the United
States, the State of Illinois or local ordinances, or who
violates any provision of the Rules and Regulations of the
Department, or who disobeys any lawful order, or who is
incompetent to perform his/her duties is subject to appropriate
disciplinary action.
418.00 Penalties The following penalties may be assessed
8
against any officer or employee of the Department as disciplinary
actions:
Oral Reprimand
written Reprimand
Suspension of up to five (5) days by the Chief of Police
Suspension of more than five (5) days, pursuant to the Board
of Fire and Police Commissioners hearing (sworn personnel)
or the optional grievance procedure (arbitration), which is
outlined in the collective bargaining agreement.
Dismissal from the Department pursuant to a Board of Fire
and Police Commissioners hearing (sworn personnel) or the
optional grievance procedure (arbitration), which is
outlined in the collective bargaining agreement.
446.00 Misconduct Observed by Police Personnel - Whenever any
command or supervisory officer observes or is informed of the
misconduct of another officer or employee that indicates the need
for disciplinary action, he/she shall take authorized and
9
necessary action and render a complete report of the incident and
his/her actions to their Commanding Officer.
GENERAL ORDER 13.14
TRANSPORTATION OF PRISONERS/CITIZENS
POLICY: Transporting any person in a police vehicle is a
potentially dangerous function. Therefore, it is the policy of
this law enforcement agency to take precautions necessary while
transporting prisoners or private citizens to protect the lives
and safety of officers, the public, and the person being
transported.
POLICY:
GENERAL ORDER 10.01
USE/REPORTING OF FORCE
Officers should use
force necessary to effect an arrest
objective of the use of force is to
by an offender.
only the reasonable amount of
or control a person. The
overcome resistance offered
10.01.1 AUTHORITY
. Officers should use only the reasonable amount of force
necessary to effect an arrest or control a person. The objective
of the use of force is to overcome resistance offered by an
offender.
Police Officers of the Department will not unreasonably, or
unnecessarily, endanger themselves or the public in applying this
policy.
. Violations of the rules will only be the basis for
administrative discipline, while violations of the law will be
the basis for civil and criminal penalties in a court of law.
10.01.10 FOLLOW-UP TO OFFICER'S USE OF FORCE
All officers will make an immediate verbal report to their
supervisor following any use of force and file an appropriate
case report that documents the actions of the suspect that
necessitated the use of force, the reasons why the officer used
force, as well as any suspect complaints of injury, medical
treatment received, or refusal of medical treatment.
GENERAL ORDER 6.0
POLICE HEADQUARTERS AND FACILITIES
6.01.8 GENERAL RULES AND RESPONSIBILITIES
10
. Agenoy personnel will not enter an oooupied oell without at
least one other offioer present, unless emergenoy oiroumstanoes
exist.
In accordance with IDOC Jail Standards, force will be employed
only as a last resort or when other means are unavailable or
inadequate, and only to the degree reasonably necessary to
achieve a permitted purpose.
POSITION OF THE CITY
The City says that it had just cause to discharge the
Grievant.
Looking first at the appropriate standard of proof to be
applied in this proceeding, the City argues that the appropriate
standard or quantum of proof is the preponderance of the evidence
standard. This standard applies in cases where an employee has
been terminated for dishonesty. In particular, the City notes
that the Illinois Court of Appeals has rejected the proposition
that allegations of dishonesty must be proven by clear and
convincing evidence. In Decatur PBPA v. The City of Decatur, 968
N.E.2d 949 (2012) the Fourth District Appellate Court, in a case
involving a police officer terminated for domestic battery and
untruthfulness, said "it is a violation of public policy to
require the continued employment of a police officer who has been
found to be abusive and untruthful. We find that the standard of
proof is preponderance of the evidence" (Id. at 758). The City
points out that the evidence establishes that the Grievant used
excessive force against three arrestees and then lied under oath
about his behavior during his investigative interrogation.
11
the Qity potes t4at thf> Des P;Liiinel? P,>l,ice n",partmetft has
many Rule.s apd Regu;La,1;;Lons, Rules of Qondu<::t, and General .orders
(X 4), The Grievant atlil)itted during hisiPterr(igatioPt'estiI1lony
that he ha.d recel vedC(ip:i.es of the Department's Rule.s and
with t);ie pep,a,ttment'$ Rules. ot C,ondl,lc.t (ex 5, pp. f J ~ 1 0 ) . The
the use ot force (ex lQ)
Excessive torce. The City efupha$izes th<;l.t th:e Pepartment's
'Lis.e ot torce Mllcy i13 pll';:i.j'ily stat.ed in its R\lle$ aM
Regulations <;lnqprovides that "officers '8ho\l.ld use only the
control a person. The objective ot the use ot rorce is to
oveJ::c.ome resistance ottered by an ottender" (ex 4E, G.eneral .order
10 .. 01) .
The (::ity notes that theJ::e is no diSpUte that the Gl;i.evant
drove the sguadcar from Elmhurst to Des Plaines on August 12,
2010 with _ .handcuffed and seatbelted in the car''8 back
se.at. As the car approached the Department building in central
Des Plaines, the Grievant pulled into a City parking garage about
100 feet short of the Department building, stopped the car,
exited the vehicle and walked aJ::ound totheright rear door next
to where_ was se.at:ed, opened the door, and j)unched_
in the tace with enough force to bruise __ right eye area
and cause his right eye to swell completely shut (eX 12). The
Grievant did this while_ was handcuffed and seatbelted in
the back seat of' the car. _ was contained and under
12
qCJ)l.trOl :i,nt.he padk9t' the dar, Wal3 pdt res:LsHng qxrestj and
th,8 Grii3vapt g<ive nQ dQIjl!liand t9_ pri9r to liitting hiljl,
Th,8 C.:\.ty also poti3sthat :r"e.i!\r$<;,at. pi'ls$!3ni)'i3r$, incli.,1d:i,ng-'
GQuld nQt open the. rM.;r d.Q9r 9f tlii3 $.<'J:Il.<lddi'J.r bec.Eluse th$ ri3ar
d9Q:r;S c<lnMt. p$ frQ)ll 10M in$.iele Qf tAe. dqr (Tr.1)7).
Tbe City Elrglle"i th.i!t the l,;l"ievant '$ fdr tlj::opP:tpg
and hitting_ - M beLleved thqt_ had loflCAPed t)::om
.or "eleteated" hi$ hanctcufts .and he neecieel to. "elj.stti'J.dt"_
in oreler t.o check th.e conditi9n of hi$ barielcuff's (CX 5, pp. 1)0-
83) - is D.ot worth:\:, of belief. If the Grievant wa$ truly worried
that _ had d!3featedhis handclltfs, the Grievant would have
al!3rted his partner in the front seat, otficer Andy Contreras,
and sougbt his. assistance. Instead, the Grievant said nQthing to
Contreras (CX 5, pp. 81-8'3). The Grievant also had significant
assistance available via police radio in the Department building
that was no more than several sec{)nds away (about 100 feet).
HOWever, the Grievant made no effort via polioe radio to contact
Dep"rtment personnel inside the building. Instea<i, after hitting
_ the Gd:evant got back into the squad Car I he drove the
car tp th.eparking lot by the back door, he and Contreras
escorteel_insidethebepartment building, and they turned
_ OVElr to other officers (CX5, pp. 86-'<89).
Following the Griev;'1nt's assault upon _ and_
booking, t):18 city notes thi'ttthe Grievant failed to file any sort
of verbal or written report libouthis use of force ,,"gainst
_. G. 0 . 10. 01 (in Section :uL 01. 10 ) requires that "All
Off:L'cers will make an immediate vej;bal report to their supervisor
:f'oliow;ing anY Us(lof fotqe and:f1l;eiih!i.pptoPtiate case report
that dOoume.nts the acHou(3 of the Sl.1Spect that neceSs;ttat.eq th(l
i3
use of f.ot'p6, the r<;jasons why t)leoffiN1:' uiled for'ce, as w(lll!i$
!3:ny Sl.1$pect complaints '0: ;injury, Inedicg:l treatment Leq(li Ved, Or
r(lfUBi;l1 of li\ediC!il tt'eatIliEfnt" (aX 4B). l:)le G:r;ievMt ct\.d. Mtt.ile
either i'i verl:ial or c.il;se report ",l:)Otlt his use of fo.rc(l il;gainst
_ ,ati'!IlY tillle",fter t.h.is. inqident6qurreq. J;n fiict, Bueno
",dlj\itted dpring hi;8 ihterrpggtipn t.l:\il;t he Wil.& r.<;\guir(ld to fi1(la
repprt docnm<;intj,hg his jlse <if f'ore ./l.nq that hef",iled t.o do so
Use of fpre ppliGy. T)le GrieVi;lnt' s f.i;lilure tp f.ile such a
report indioate!'l t)l!;lt the GrieV!;lnt w!inted to hide )lis coU(;'li.tQt
beause )le knew he hgd no valid regson to punch _ih the
facs.
In short, the City sa:'{s the Grlevant's use of force against
_ on August 12, 2.010. was unne.cessary, unjustified,
excessive, not int.ended to accomplish any police purpose, and
clearly violat.ed the City/s use of force policy(CX 4B).
Turning tD the Grievant's USB of force against __
.., which occurred on Dr about January 20, 2010 (GX' 5, p.
32), the Grievant said that he removed_ from his cell and
took him to a holding cell known as the "pink room" so that
_ could talk with him privately, at request. The
Gri.evant said he moved_ into the pink room by himself and
did not tell ot.her officers or his supervisors what he was doing
(aX: 5, pp. 23-26; ex 2, p. 14). The Grievant stated that, while
he and _ were in the pink room, _ became angry and
14
aggressive, grabbed the Grievant
t
and the Grievant responcieq l;Jy
punohing_ (.ox 5, 1'1'. 24-29). The Griev"mt putlOhed_
hard ehbugh to dra.W blo.od (from hbse) , :ll,fter tnis
inoidentwith_ Wi;l$ oonaluqed, the Gr.ievant failed to file
a use of force report, cohtri;lry tQ Dep"rtm"ht policy.
The City ElmPhasi>:e$ that the Grievant hi;ld.a duty to ;;>vQid
Cohftol}tat;ioil with_an.d M i'll'io hi'ld a duty. to minimize
the p6,$$ibilityof trs;thg force. MweV.eri the GriElVaht mqved
_ PY hifitself, from ". oell ipto the pipk :CDom whe.re h.e and
_were .ou.t of sight of othetPri$Oi)Eirs ci,M offioets (ex 5,
pp .2(3-2(;). Th(l Grievant .. did hot inf9rm hi$sllpervi$o1Cs or other
ilfficersw11l'.lthe W;;>l'Iqqihg (ex 2, p. 14). He did not call for
assistance wh,m _ beo;;>meangry, ;;>nd ins.tead he hit_
with il\JffiGient forc(l t,ogive him" bloody hoS(l (CK 2, pp,. 6, 9).
The Grievant's f"il1.lre tb avoidoonfrontatiohat1d his slibseg)ient
use of force again:'lt_ ma)c",s ole.&1' the GrieVant' suse
of fo.rdewas not neceSsary or justified.
Moving on to th", Grievant's use of o1'.Oe against _
_ _ was in his cell, the Grievant enter.ed _ oell
by himself, and then pushed_ (CX 2, p.l.14). _earlier
that day had made a vulgar comment abo.utthe Grievant's daughter I
but _ was not resisting the Grievant nor did he present a
thr.eat to the Grievant .or anyone else (eX 5, pp. The
Grievant's use. of foroe on_ wasunnecessarY:r unjustified, in
dir,ent violation of the dity's use of force polioy, and was not
intended to acoomplish anyp.olioe purpose. Additionally, the
15
Grievantfail'8dto file a use of force report after the incident
with_was concluded (Tr. 113).
The dity says that the Gri.evant's )1$" of force agaln$t tb.e$e
threeaJ;'re",tees was intentional and retaliatory, The Gri'ev;3.nt
p"ncp",Q _ in rataliation for _ allllO$t;t"unning oVer
officer ,Hart during tb,ePelta Unit's ta,'i.:Lep drug buy in January
Itol<.imanand tM GriE'lvaht went anp searCheda,n api:\rtment w)iere
they Wei'e tolPthe}, .couJ,d finddrug(? ang theil' s.earc.h qajne up
elllPty (Cl( 2, Pl". 13-1t;!;Tr. 10;3-105) ; and he pVi3hM_ in
daugljter (Tr. 112-113).
The City argues that the criminal record.s of these three
aHe$te"'3 do pot justifY tlje odevant's use a;!: f6re$. Cb:Lef
Kushner te,stifieg that an ofncer'p tactical appro.aclj wljen
dei:\1iilg Witl). a viq:lent criminal :L$ significantly different froin
approaching an individUal without a criminal background efr.
507). When confronting an individual with a violent oriminal
histor:l;', the .officer should a.pproach the individual w:Lth more
than on'" offi.cer, and it is riot good po'lice procedure to confront
such an individual alone if itc.an.be avoided (Tr.
However, the Grievant did elj:actly the oppositH with_
_ and _ for he engaged e.ach of them by himself and
without alerting other officers to what he was doing. The City
says t'hat the Grievant wap not elj:ecuting any police purpose when
he de.alt with these three arrestees but was inpte.ad si'mply
enacting revenge for perceived slightp.
The Grievant is lure of ex;cellsi VI" fQrce against these threE>
arrE)stees, standing ql<:>llE) , oonstitutes jllst qaUse fO:4 his
termin;;ttion. !M City cites othe1:' ;;tr1>itratiOh "w<Jtd
s
in support
0:E tllE> proposition thqt "anpfficer's u880f excessive foroe
prov1.<ies jU$t qallse tor t"tminlition" (C,Br. 26), !he city a1sp
poipt$ to tJ;lE) clear I;Llillois public pol;Ldy thata110.ws
gpVElrn).ltent13 ,to dischatgeemp16yees whO infl,ict l:)"ttery llPon ~ , l l
"rrestE)e (C.\3r, 26). !he Gr1evantuse(l: exce$llive ,fotc$ agaiMt
thes,e tliree "r:4estees inre,ti3-lii3-tion for the1:4 j5:41or c,:dmin;;tl
offeh'SE!s 0:4 th$1r p$rcE>iVed personal insults,. !lies" three
inC;i.dents estapl;Lsli th,<ltthe (3r1evant ,has " pattern of abUl',ing
Hi
liis authority as ,a police officer. T!16 Gd"i;t,nt' s, r$peated abuse
,of his authority means the City haE; just caus,efor his
termination.
The City argues tha1:1:he Union has alreadyadmitte<i that the,
Grievant's conduct on August 12, 2010 towar<i __
provides "sllfficient cause!' for his termination. As noted above,
the City sought the termination of both the Grievant and Officer
Contreras for their misconduct during and aft.er1:h'8_
incident on August 12, 2010. On or about Mardh 30, 2012 the
City, the Union, and Officer Contreras entered into a "last
chance agreement" ("LeA, " CX 15). In this LGA, the Unio.nand
Contreras agreed that Contreras I conduct during the_
transport from Elmhurst to Des Plaines ,on August 1'2,2010 and
thereafter during the CitY'5 investigation constituted sufficient
cause :Eor the termination of Contreras' employment with the City
(CX 15). In 'return for the City's willingness to no longer seek
17
Cohtreras' terminatiqn, Contreras and the llnionagreedto a four.,..
fi'lonthsuspenSion without pay, that any cqnd.uGt by Contre:r-asthat
v101",.testhe LeA wi11 result in his tet'mination, that the LeA is
Cohtr.era:,,' last ch@ce to m;:lihtairi his E)(l\p1oymE)nt, '>hd.that
the LeA is. to rem,Hn in effeict for th1;'ee yeari3 (ex 1:S). The City
eniphai3i)':es that there is no eVidence that Gontreras ",ver struck
any arrestees. lnstead, Gont:b,,,,i'ls' "la.ck of di.sCl.osure"
con.8ti t.uted "sufficient c411se" ;f'.Qr his termination. T1):at being
thEi oi'lse, the City argUe" that, cClnddEiring t1):at Gont1;'exai3
i
Dishonesty. ,Moying gn, the City Says t1):$ct 'the [jrievant'8
dishonesty abotit his conduct with these :arres.te.es .oonstitutes an.
additional and ihdei?Emdent reai30n for his terminati.on. The .
. evidence shows that ,on November 16, 2011 the City interro.gated
the Grievant a$p&rt of the City's investigation ilit.o the
Grievant's interaction with_ and at the start of this
interrogation the Grievant was intormed that his ufailureto
answer truthfully in this interrogation would be deemed
insuhordination and/or additional violations 01' the :Rules of
Conduct for the City of D.eB Plaines" (eX s, p. 7).
During the City asked the Grievant
several questions about his use of force against _ The
Grievant insisted he punched_ to gain a "tactio.al
advantage" over _ because the Grievant thou,!ht _ had
defeated his handcuffs (eX 5, pp. The .Grievant also
explained that he did not informContJ:'eras of this belief and his
18
intention to obec1\: on __ bandcuffs becau.se he did not want
to !!tip off!'_ (CX 5, p. 83).
The City salfs the Grievant's explanation:;; for his condu.ct
toward IIIIIIII defy common sense. D.C. Burton exvlained in her
investigative rerort that there was no need for the Grievant to
gain a tactical advantage over an arrestee who was handcuffed and
confined in a single compartment cage in the badk seat of the
squad car (OX 2, p. 15). Burton said it also did not ma1\:e sense
for the Grievant to not inform Contreras about his plan to stop
the vehicle and check _ handcuffs. The Grievant could
ha.ve signaled Contreras through his body language about his
suspicions and he could have radioed for assistance if he pulled
the squad car to the badk of the station (CX 2, p. 15). Burton
testified tha.t if an officer had a prisoner in the back seat that
was suspected of defeating his handcU:Efs, sbe would tell her
pgrtner ot her belief and she woul.d bring the prisoner directly
to the Department back dOor and radio for assistanoe (Tr. 88).
Elmhllrst O;Eficer Brandt Cappitelli confirmed Burton's testimony.
He testified that there would not be a need to gain a tactical
advanta.ge o\rer someone who was not resisting a.rrest (Tr. 309).
Former actir),} City Jxlanager Jason Slowins1\:i also confirmed
Burton's tE'l$ti.mony (Tt'. 331);
Chief .\<ushner corroPo):,a.ted the testimony of these three
witnesses. He testified that if _ was a\Jtually trying to
defe;;:t his h,cindollffs, the appropriate ;;:etion would be to "pu;Ll llP
in Pac1\: of the station, . . . call for addition;;:l a!'lsi!'ltance,
19
contain him" (Tr.
The City 'lay it is telling thi'!t the Grievant never reported
hi ue of force against_ to any Pes Pli,ii.nes officers or
documented it in a cas", repott. If _ adtlli,iJ,J,y POI3",d i,i
threat and if th'" Grievant's USe of fovc.e Wa.s rlla[;;.onal>le .and
neces.r;;ary, the City says the Grievant would have r.eported these
things to fellow officers and his supervisors.
Not only does the Grievant's story about _ defy common
sense, it conflicts with information provided by other City
officers. The most obvious confliot is the C5rievant's statement
that he did notofer_ medioal attention beoause "there
were no ndications of injury'! (cx5, p. 92). This statement
.confliot$ with th", statements of five other offioers who stated
(to Burton Whei) shEl intElrviElwed them during her investigation)
that _ WaF' injllred on August 12,2010 (8gt. Holdman
Elnd Qffiqers .Hart, Boniak, 8tancato., and Ruzicka; CX 2). Ei,iohof
the.se officers notio$d _ phy.s;Lcal condition and reported
that they offered him med.icill i,issi$tapee, wMtih he 'declipe\1 (OX
;2). Jl.dditiOhEllly i the Gri<;'lVl'\ht '", c;Lail)1 >i1l:i>.out _ li,ickq
irij\1ry is canttadiqtEfd by __ bookihg Phbb;> taken
on A\1gust 12, 2019, which shows_ right eye <is bruised >i1nd
SWOlleh s.h]1t (Ox 12.)
T)).e Gri"vant'f'; dij3honesty is "lso pot:qe out by iIlterrqg{J,tioIl
statements frol)10ffid"r onttEfrll,$ t.hat gir\'lctly contradict some
of the NOVempe;r 201.1 iliterrpgationstaterqehts provided by the
(jri$va.nt <ibQut tM eVepts of the $Vehing of August 12, 2010,
20
Botp, tP,<e q:tiev!lilt .MqContr<efal3 W!3r" aske(.l if they ti'\lk"d qpbtit
the prisoner (_) tb<'1Y iptell.c;ie(.l to. pick PJ? in Elrt)hufst tM.t
eVeniil.g c;iptihg th8irc;irive ;l:rb,m 01313 !?li'\ill.esto ElIllhpil3t.
Coht'tet&.s stil.ted tnilt h<'1 aPd, tbe Grievant: dil3ctilise:c;i _l'md
tne Grievant told mm tbilt _Wal'; tbe pe);'son who !!almost ran
over sotne 0;1: our qtber UndercoVer uhit gtiYI3" (CX 6, p. 14.),
However, th<'1 Grievant statec;i dUring bis interrogation tP,atbe did
not rec.all havin,c;rany conversation with Contr.eras a.bout _
durinc;r the drive to Elmhurst (ex 5, J?P.69-70, 73-74).
Also, during their interrogati0ns hotb Contreras and the
Gri'evant were asked if they had a .conv"rsati0n with_
during the ride ba.ck to bes Plaines after the Grievant and
Contreras picked up _ in Eltnhurst. Contreras stated that
c;iuring the ride back to bes Plaines the Grievant and _ had
a conversation about the January 2010 incident regarding the
.;l:ailed drug buy (CX 6, pp. 2 ' 2 ~ 2 3 ) , and tbat _ said ":t
didn't know you guys were cops" (ex 6, p. 23). However" the
Gr;i.'evant state(:i that h<'1 did not have any oonversation with
_ duripg tlie dpive back to Des Plaines (<;:X 5, p, 79).
:):b<'1 City additiona;UY!1otes that th\jre;J.$ np evi(ieuce in the
1'<3001'<;'\ tq suggest t1H).t tbeGrievant' s interrog"tioll tel3ti)lloI'!Y Was
paseg upon his inability t,o aCcllrate).y reCiill events; The
G:ti\:)vaht neve.r cla.itned during his Nove)ll1;>er ,2011 interrogation
that he qo'U1dnot recall events surrounding h:i,s uSe of force (ex
5). The Grievant a).$<) 'tiad the 0ppoJ;'tun.ity to te!"tify dUring the
in(ltal1t hearing and e}(plain his interrogation an:;;W<'1r$ but lie
'chos\:) not tq, MqreoVer f it the Gri<'1V11nt bad followed proper
21
Department procedure and prepared use of force reports, he would
not have had any problems recalling the events in question.
The City argues that the Grievant's dishonesty, standing
alone, constitutes sufficient just cause for his discharge. This
can be readily ascertained by examination of arbitration awards
dealing with law enforcement officers who have been discharged
for dishonesty. For example, in City of Montclair and Montclair
Police Officer's Association, 127 LA 32 (Gaba, Arb., 2009), in a
case involving a police officer who ran a red light while off
duty and then lied about it to the court to escape a fine, the
arbitrator, citing another arbitration award, stated "Dishonesty
destroys the trust which is essential to the relationship between
an employer and an employee. It is so obvious that it
constitutes a dischargeable offense that no employee can claim
ignorance of the rule or the consequences, even absent a
published rule or policy. It is an essential job
requirement that sworn officers tell the truth in court" (127 LA
32, at 41, citation in original omitted).
Closer to home, the City notes that the Illinois appellate
courts have held that it violates public policy to reinstate a
police officer who has been dishonest. In Decatur PBPA v. City
of Decatur, 968 N.E.2d 749 (2012), the Illinois courts reviewed
an arbitration award in which the arbitrator reduced an officer's
discharge for domestic battery and untruthfulness to a
suspension, and the trial court vacated the award and the
appellate court affirmed the lower court. The appellate court
noted "the strong publid polic:y for officers to
be truthful during police investigations" (Id. at 754).
Lack of mitigation. The City goes on to argue that the
Union has failed to present any mitigating circumstances that
would justify the .Grievant' s use of excessive force and
subsequent dishonesty. The Union a):"guesthat the City violated
the Grievant's due process rights, but this argument must fail.
The Union emphasizes that the City's investigation into the
22
Grievant's conduct did not occur for more than a year after the
Grievant's abuse of_ in August 2010, and with even longer
deli'lYs in the investigations of the incidents with _ and
_. However, the City says the evidence shows that the City
de.Gision maker in this matter, acting City Manager Jason
Slowinski, launphed tpe City's investigation into the Grievant's
misconduct when he received the August 9, 2011 letter from Keith
HUnt (Tr. 327). As soon as Slowinski received this letter, he
o):"dered Deputy Ohief Burton to conduct an investigation into the
allegations in the letter (eX 3). Burton thEm conducted a
thorough investigation (OX 2).
Ad<'litionally, there :1." no evidence showing that there wa"
anything unfair or prejucliGial in whatever clelay there may have
been in conducting the investigiition.
Most important, the Grievant's mis.conduct was inexcusable
regardless of any clel",y that occurred in conducting the
investigation. The Gr:i,evant used excessive force against three
arrestees, and there is nothing in the record to indicate this
misdonduc:t will not be re)?ea,ted. The Grieviii;1t expressed no
23
r.\3mois\3.:I"o;r his aotions. In light 9:1" tliB evid.epc\3 shc}\vi!1gthat
the Grievant \ngagedin serious mis(::onduct,t.h\3 union's argument
that the city violated tb,\3 Gri",Vant'sdueproo\3ss :r:ights nl\1st
fail.
Th\3 City says ther\3 is no.eV:idence tht rnernpers of thE;>
polic\3 c.oIOl1)and. staffkn\3W that the Gri.evaht' s Use of forO\3
against _ was exc\3ssiv\3. Th\3r\3 is no evidenc\3 that tb,e
police command staff mernberskn\3w that th\3 .Gri\3vaflt punched
_ while he was handcuffed in the back of th\3 squad car, or
that _ was cornpliant the entire tirne he was in custody and
did not resist in any manner.
contrary to the tJnion's argurnents, the City does not condone
abusingarrest\3es. The City did not give the Gd:\3vant positive
perfo);:rnanqe revi\3Ws b\3cauS\3 he used \3xcessive foroe against
arr",stees. A.s noted above, th", Grievant hid his conduct by not
informing hiEi supervisors and RY not filing use of foro\3 reports
(eX 5, pp. 89-90). Commiolnder William prim, the only witn<:!ss th\3
Qni<:)n .. c('l.1.J,eQ to testify j wa$ the Grievant's svpervisor prior to
his t\3ri,nination (Tr. 546, 5(7). Prim testifi",d that he never
qO'ldQn"'d th'" \1seof unn"c:8SS"ry for",,, "g"inst arr",st",,",s, he neVer
;rewarded, an officer for the use of ttnneoe$sary force, and he
'leVer 9<l.ve. Ute GtiElvanj: a positive Performance "v"lua,tion a.s a
Signal toilddneexp,",sili ve Or unnec:essai'yfC>i'c:1:! (Tr. 562-563).
$taff knew tPij.t the Gr1\3v<'Int used force, this did n<:ip)llean theY
knew that the Gr:levant used exc:essive forc", (Tr. 2 4 2 ~ 2 ( 3 ) .
Ell.rtOh also testified tb,,,t l1e.ither .the City J>:l:Mage;r: nor th", Mayor
24
11,,0 My lr;jfotlUatiqu tl1"t tl1e Gdev"ntw,,'l using eXeSE>tire fc;:;rGe
a<J"inst arrEf$tees err. 2.4$).. AGti@ City M"nager Slowin)wt
ti;lstifi",<;l tl1a:t11$ ql,d :[lQthaveil:[lY ipfQ.r):\I1,-tiou prior tc;:; ]\llgj]st 9,
2011 tMt the G:ti.''Y'''rit llsed f.orce gaiMt arrestees (Tl;'.:327).
Slowinski testified th"ttbe Gity dQes not dQii,doM tM j]se of
excei"$ive forGe a.gai:[l[lt "rrestees,and also that f"I1n!'>t Ch.let Jim
Prandini, who w.a$ the. City'$ Cl1ief of policedtiring 20Q9-2010,
could not all,thori.ze thE) Grievgnt to use exGe'l'li v!;lfbra", (Tr.
441) .
The City says that the Union. is asking tM.t tM Gri",vilnt's
misconduct against _ and other arrestees be overlooked.
The City arglles that civilian ,oversight of the Depattmentby City
Iiall must bemaintained. Acoordingly, the Department'E; failure
to take action against the Grievanh cannot immunize the Grievant
from being disciplined.
Further, the Cihy notes that this Union argument fails to
address the fact the Grievant committed a second
offense on November 16, 2011 when he lied under oath during his
interr'ogation (CX 5). As a result, the City had just cause to
terminate the Grievant for this 'Separate reason of lying under
oatJj.
The City similarly argu"s that the Grievant's "good"
per;Eo:r:mance record does not justify setting aside or reducing the
pena1.ty in this case. the City contends that it is well
established in l"bor arbitration that serious offenses, such as
those C9lnl\litted by the Grievant in this matter, can lead to
termin",tiopregard1.ess 0;1: an employee'S previous work record
25
(Qhio Bb<'ltt;l Hig'hwiti' Pc!i:;rp.l Cl"d FrC(tf!rtJa.l O.rWr of Po .lice, 94Ll}
JiinUqry 1:5, Bitbel, Arb.; City Of Fa:Lrhorn, Ohio and
F.<tLrbo.rn City Lad.<je No. 48, Fraterha.l Or(ier of P91iqe, 119 LA
75"1, october 17, 2003, Coheh, A;;b.). 1\.$. a re$ult, the Grievant's
P9$itive j>erf.orl):ta,nceev;;l.lu.a,tionsa,n\'l COlnIJiengatiOrts ca,nnot jl\'ltify
.cilCptl1erwiiJe irtitlgate h:Lfl Ufle pf tot:ce aga:Lnflt ."
h"nQguffeq ."rre$t.$e. i'l,nd hil3 lYing 1,lhdero"th C\pciut his
miiJ.cpnduct.
Turing to the l)'riipri's "rgumetJ,t "pout "ooNj>ar<;lble
dil3oiplitJ,t;l," the City Mte:;! th.at the UIi.icin,sj1PNitted sever,,1:
exhibits t\esigne.d to Ilhow that otluer De:;! )?laine$ Q.fficerll hi;l.ve
colninitted serious o;I'f",nses and reIJeivE\d It;l$ller discipliile than
termini;l.tion(UX 15A-L), and the Unioni;l.rguss that these other
oasesshowthattl1e Grievi;l.ht was not treated compar"ply to these
other disciplined Department .membe:ts.1'he City rejects this
argument., pointing to the fact that the Uni.on alrt;lady "gr.eed, in
its Last Chance Agreement with the City on behalf of Officer
ContrHras, t'hat the City had suffioient cau.se to terminate
Officer OontrHras for his August 12, 2010 misconduct in the
__ incident with the Grievant (OX 15). Contreras is
the only officer who engaged in misconduct that was comparable to
the Grievantfs misconduct. Because the Union, City, and
Contreras agreed that Contreras's aetions on August 12, 2010
constituted sufficient Cause to terminate his employment with the
City (eX 15), and beoause the Grievant engaged in theu.se.of
excessive force against a handcufiedprisoner., which ,Contreras
did not do, the City says that by extension the City had just
cause to terminate the Grievant.
26
Additionally, this Union disparate treatment argument fails
because there was no disparate treatment. The discipline against
other City officers cited in UX 15A-L is distinguishable from the
instant matter for the following important reasons. None of
these other officers were charged with lying during an
interrogation, and none of them were charged with use of
excessive force.
Because of the severity of the Grievant's misconduct, and
because there is no evidence that would justify the mitigation of
the discipline against the Grievant, the City argues that he
cannot be reinstated. The Grievant's abuse of his police power,
and his dishonesty while under oath, constitute a permanent stain
on his record, which in turn would make it difficult for the
Grievant to be an effective witness in criminal trials (Brady v.
Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.s.
150 (1972); ~ y l e s v. Whitley, 514 U.S. 419 (1995); U.S. v. Cadet,
727 F.2d 1453 (9
ili
Cir., 1984)}.
For these reasons, the City asks that the instant grievance
be denied in its entirety.
POSITION OF THE UNION
The Union says the City did not have just cause to discharge
Grievant Bueno.
The Union points out that it is well established in labor
arbitration that employers bear the burden of proof in
27
disciplinary cases. Further, in termination cases, the emplayer
has the burden .of praving by clear and canvincing evidence that
the decisian ta terminate an emplayee is warranted. Far the
reasans expressed belaw, the Unian argues that the City has nat
met its burden .of proving it had just cause to terminate the
Grievant.
In particular, the Unian urges that I apply the "seven tests
.of just cause" .originally pramulgated by Arbitratar Carroll
Daugherty in a much-cited arbitratian award he issued almost
fifty years ago (Enterprise Wire Co., 46 LA 359, 1966). In this
award Daugherty presented seven questions about the disciplinary
process, and he suggested that a "no" answer to any of them might
indicate that the discipline was not far just cause. These
questions are:
1. Did the campany give ta the employee forewarnings or
foreknowledge of the pas sible .or prabable disciplinary
consequences of the employee's canduct?
2. Was the company's rule or managerial .order reasonably
related to (a) the orderly, efficient and safe operatian of
the company's business and (b) the performance that the
campany might properly expect of the employee?
3. Did the company, before administering discipline to an
employee, make an effort to discover whether the employee
did in fact violate or disobey a rule or order of
management?
4. Was the company's investigation canducted fairly and
objectively?
5. At the investigation did the company "judge" obtain
substantial and compelling evidence or proof that the
employee was guilty as charged?
6. Has the. company applied its rules, .orders, and penalties
even-handedly .and without discrimination to all employees?
7. Was the degree of discipline administered by the company in
a particular case reasonably related to (a) the seriousness
of the employee's proven offense and (b) the record of the
employee in his service with the company?
The Unian insists the recard is replete with evidence .of
"no" answers to several of the just-listed questions.
28
tl1at Dpattl)\$l:rt;mi'll1p.geme);),t wei.S aWiiJ;e q;ftM Gri(N<tnt' suSe of
fpPQ$ tpwaJ;d. __ and _ {ex 4; ux VI) .iUlct c.Mse
to do nOthing about it. In partici.\lar, th:e eviqence sMws t.l1at
]?gt. Mi1>:e Hql&nan, comlj\anCler William Pr;i.m, D@i.\ty cUief RiGharct
R9k\J;'lz1>:a, Dep4ty cl1i$f Midhael :Ko?ak, p.h.d Chief Jim pr<indini all
obti'lined 1>:nowleclge of tlce _ in.cidefltwlthlh .8. week OJ; 8.0 of
the inoident, yet none 'bf thi'lm t1:)o1>: afly 1'lctibn with.t.heG:i:iiN'8.nt
about this inoidetit.
Tl1.e fact tb./'lt ))\\1l tiple .m.embers of tl1.e Depart)jlent lea:i:ned
about the August l2, 2010 _ incident '(<:It !;lid nothing apout
it indicat.es that the city condonedtl1e \Jlle of fprce b.y the
Grievant. Similarly, Sgt. Holdman fi:ted a report about the
January 20,2010 inoident with the Grievant and __
in the pink room (eX 13, Bates 000317-319), and in his report
Holdman wrote that Commander Brim "was on scene and made aware of
the above situation" (ex 13, 000319). The Department also did
not investigate this incident.
The Union 'emphasizes that for just cause to exist, an
employer must inform employees of the content of its rUles and
policies, and employees must see that these rules/policies are
enforced. When an employer oondones violations of Tules or
policies, or generally engages in lax enforcement Over a period
of time, this management hehavior may cause employees to believe
that management tolerates their conduot despite clear written
ruleS to the contrary (Equistar 126 LA 1480, at 1494
(Goldstein, 2009); City of Chicago and Chicago Fire
Fighters Union Local #2, unpub., (Berlll, Arb., 2012.
29
The Union says the evidenoe about toleranoe of
the Grievant's behavior shows the following. Chief Kushner
testified that after the _ inoident the Grievant received a
positive performance evaluation, that after the _ incident
the Grievant received another positive per,formance evaluation,
and that after the_ incident the Grievant received still
another positive performance evaluation (Tr. Kushner
testified that these positive evaluations of the Grievant
indicate that the Grievant "was being told he was doing a good
job" (Tr. 486). In addition, the evidence shows that several
inembers of the Department's supervisory ahd commahd staff knew of
the Grievant's conduct, especially with _ and did nothing
about it. 8gt,. Mike Boldinan, who in 2010 was the supervisor of
the Delta unit! told D.C. Burton during her investigation that he
observed _ swollen eye on August 12, 2010 (CX 2, p. 2).
Holdman told Burton that he (Holdman) informed D.C. Rozkus;?;ka
about _ swollen eye (CX 2, p. 2). H91dman also told
Burton that, soine time later, Ro;?;kuszka tol<;i Hol<;iinan that he
(Rozkuszka) tC\lkeiJ. with Chief Prandini a,bout the _ matter
and reported thi't Prandini said (to ROzkl)szka) that if _
did not file a complaint he (Prandini) was hot going to do
anythingi'pou,t the, matter (CX 2; p. 2). There is no evidence
that _ filed a complaint with the City, i'hd there is ho
evidenoe of any investigation into the _ matter prior to
the :\.hvei;lti\Ji;ltiqp Cq"ctl1ct!"dpy .l>.ll:tton dV:t ing in
respopse tp the l;l)lnt letter of :1\.t;t\Jpst, 9, 20liCCJ)).", 2, 3).
30
officer rom St<tpcjcito, wM 11,,<> the desl<' 9ffier attl;te
$tati.QP worJ(ihg the night, of :1\.t,1g11St l2, 2010,1::I'>3,ci D.O. l>)lrtoi:)
that office;r:i;lBll!"lip 'a.nd GQ"trer!'l,S J:,;r:C)pgj-,t __ into the
station pp1\)lg)lst 12, 2010 i anci the P.r;L$cmer'!'l eye wcis puf;E",d \;tJ?
(ex 2, p. 7). .Stin\c.ato (l,l"q ipfq)::ll1ed B1JlCtQh t.hat D. e. Rp;oku.sbk.a
asked StapGato fqr a ,l;looJdng PIroto of _ .apouta week <iUef
the incident (eX 2, p. 7). ep!bll\apcier William Pdm iotl$Qci.skect
Stapcato that same day fQ;r: the scime poqklngphoti;l of _tex
2, p. 7).
Commander Prim told D.C. Burton that DffiG.er stancatp
lnformed him (Prim) that a woman called the station on August 12,
2010 to complaicn that her boyfriend, __ was beaten
up by pollLee (ex 2, p. 10). D.C. MiehaelKozak testified during
a December 2011 interrogation that he was informed in August 2010
byC01nmancier Prim ofthe complaint from a woman that _ 'had
been mistreated by the poline (UX 14, p.
The union says that .t:his evidence shows that a sergeant, a
cOrtiijtan4;t,! two deputy chiefs, and the .police ohief all learned of
thEl _ inoidElntwithin several days of its occurrenee on
l\.ug1Jst 12, 20;1,0. HOWElVElr, the Department .command staff undertook
no il)vElstlgatiol) of any kind into the incident between _
Rn4 the,GPievant.
The Union points out that phief Kushner admits that hi"
predSOElssor as police ohi81;, J.im Pranaini( condoned the
Grievant's use of foreEl (Tr . .486-488, 5'03). K)l$hner reached this
31
Gongl)1.sion O<lseCl o().the factt\1a,t Itl<lnagetnent knew of
the Grievant's us.a of foro", irtGidentsa.nd Got):i:;itlU$dtc;i ;Lssue
positive Perfori!1gnce evai)1ationll of him. In t)1rn, this positive
feedbaqk to tlleGrievant.llent him af1!esllage that m;,tnagement
(ipproYed of the Grie'irafit's CQHduqt.
In retlPoll$e to anY G'l:ty a;rgl,lmeJ;it tl1at Nily :Lowe:r leVel
stip\\:rvi;3o:ts ),MW of the (Jr:Leva;pt's alleged misoonduct,the union
argues ttlat this is amea,ninglessdistinotic;in, Ar.Ritral
precedent clea:rLYlll1ows tl1at lavQ:t arvil::ta:tors rBquip",empioy'ers
to begr the bl1rden of ii:1l:2onEiill.tentapplioation of :tules a,pd
discipLiM, irtcll1dil'lg when higl).er lWels of mana,gel)lentare not
<!tV/a:t'" of lowerl",yel managers toletaUng etnployeevel1avio:ts that
violate rules or policies. In the i.nstant rnattilr ,the evidence
shows that s.ergeants,. commanders, dePuty chiefs, and a police
ohief knew of and oondoned (either .explicitly or taoitly) the
Grievant's 'oonduct. The Onion insists that the City r s
termination of the Grievant after a long period of oondoning his
on-the-job conduot is clearly unreasonable and indicates that the
City did not haITe justcausB to teorminatB the Grievant.
Turning to the Citi's inIT.esbigationof the Grievant's
conduot, thetJnion says the evidence shows. that the
o
City did not
investigate thi-s matter in a timely, fair,thorough, and
objective manner. The investigation clearly was not performed in
a bimely manner. the inoident with __ occurred in
August 2010, or 12 monthsp;r:ior to the start oithe. instant
inITestigation (OX 2). The incident with __
ooourred in January .2010, mOre than a year and one'-half prior to
the !Jtart .of the :\.hstant, invIo\St,ig&tipn. The inddent witl:t _
_ OCblp"red in or a,bojit JuM 2009, Ulan two yearsp:t'ior
to the start o;J;t!J..e inst<\l1t investigat:lgn. lE"ihgthy dE"ilay
after tl:)e$e il1oideht$ 111 iilij:ia,'!::i.)1g the ihstant il'ivE'\st:\.gat,:i.ph of
themmElil;n;3 tl1&t the d:lscipline against the Grievant re$ult:LQCj
froin th:Ls ta.rQy :Lnve"tiglltion oiE'\il;rly was uhtiiitely. ThE"i Union
:lnsists thEit the City dehiY gtClvely prejud:lcedth", lJnipP'$
ab:llity to :Lnvest:lgatea,r\d defilhd this ca"e, For
meinories faded, Department v:ldeos w.e1;e destroyed, .atidio tape was
lost, aud witnes$il$ ret1l::-ect or Were :lnoi'trcer<'\ted.
Specifically, thel1niop notes that the. v:ldeo t.akilh on
12, 2010 from cameras installed in the ceiling of the $treet
level of the City1s parking gClrClge (eX 16, first s:ix
photographs), where the GrievClnt briefly parked his squad cClr to
check on the condition of _ handcuffs, was destroyed as .a
result of the Departmentfspractice of not retaining video Clftex
30 days unless it has been marked and sClved for stoI'age (Tr.S.7).
This video would have shown the interaction between the Grievant
and _ that is the eentral behavior in this matter . The
video taken inside the Department building during the inoidents
w;Lth_ _ would have shown the condition
of the alleged victims before and after their interaction with
the Grievant, The City'S blunder of destroying irreplaoeable
vide", ev:ldencecannot be undone. B.ecause of the harm to the
Union, this grievanoe should he sllstained due to the City's delay
ih inve$tigating these allegations and the resulting destruction
of mitigating ev:ldehCe.
33
'l:he Ur,tiOni'\J,.so in.sists th"t the City's investigation was
n<lither fait nor 9bJective. As notEjct above, tllei):)'vestigation
staX'tecl ih Al1gil,'rt2QHahq Qbnc'Lild,eq in December 2011 (OJ{ 2),
long i'\ft<l):' tlle thrElEj i)'lo:i,qen\:;s th\'\t .(jcCi1rrElq PEltWeenthe Grievant
;;inli. , ancl _ POllipoJihqing the. effeotsof thi.s
lebgtllY cl<ll",y l:i<ltW<l<lfl th<l OOqtlX'rehOe of tll$SE) eYE)l1ts andtM
lnvestiglit:\-oi),ql,u:'ing it$ invest;i.gation thEj c:ity )'leYe):' .spOke to
th<;l three lii:'re!3tee!3 invOlved in tMs<l inqiclE)nt!3
i ) , bOr did th<l City spEl",k to fo):'mer nepi1:t:y c:hi<lf
lUcharcl Ro":ku.szk", or Chief Jim FrliiJdini. Rozhusl;ka, vi\'\ his
attorney Keith HUnt, is tlle per$Ol1 who ihfo:r!lllecl the City of tlje
Gfievabt's. use ,of foroe again!3t th<l"e arrestees (ex 3)
Moreover, whenaoting City Manager SloWinski wa" considering
the discipline to impose against the Grievant in. th.ewake of
Burton's Gomplet<ld investi'gation, he admitted that he did not
r<lvi<lw the Grievant's work history, only his disciplinary hist.or'{
(Tr. Slowinski also admitted that he clicl not consult
with a expert (Tr. 377-378). The Union notes that
it is important for managers to consider all .of the relevant
eviclence about an employee and their conduct prior to
administering discipline. Slowinski:ls testimony clearly
ihdicates that he did not clo this when making his decision to
termihate the Grievant. Blowinski did not review the Grievant's
performance evaluations or commendations (UXs 16), so
Slowinski had no kn.owledge of the Grievant's total and
COllimendable body of work as a Des Plaines Police officer, The
City's refusal to consicler the entirety of the Grievantts work
34
r<;\oo:tg d<jttlOhst:t;l:tes :th,,:t it dig \lot approach thiscaS<j in an
.The TJnipnC6nc.$dEj$ that the G;devantshOul.4 hot haV$ ",ntere(i
_ qel:l ;l)f(i p:ushe(i hi
Itl
, and the Ul;lipl).C.OhC<jq"'$ that the
GYieya):it !tlisapp:I.iEl,1 th.El distrMtiYEl pIgw uppn _Ph A1,l\jtist
12, 201Q (U):i.Br. 2'1). E!PWIlYer, the TJnion in,siBts tha.t the
GJ;ievaI)t d.id.hp.t blll:ta.vll ittlptoperly when he was ih 1::he. pifjKtopm
with _ in ,Ji>nu<iry 2010. T:he Gi'ieyaUt joined_ in
t.:his :r;'ooIl! .<i.:t
_Il!ig:ht hiiv.$ some use\i1 infot!tliitiontrl P:n:>vide. WMn tM
two of .them werea.lone in the r o ~ i n , the Grievant t.estified th;lt
_ became angry ahdaggressive towi,lrdthe G:deVi,I\)t, ahd then
appr0i,1ched and made contaot with the Grievant (eX 5, pp. 25"'30,
last ni,lIl!e is .. misspelled as __ in ex 5) . The
Grievant defended himself as he is :entitled to do. Asa result,
the Union argues that the _ incident did not involve any
use of excessive or unnecessary foroebY the Grievant.
Movin,g on, the Union s.ays that muohof the City's. oase
relies upon hearsay evidence, such as the statements given to
former bC Burton. during her investigation (eX 2). Many of the
lndividuals she interviewed dld not havedlreot knowledge of the
incidents between the Grievant and _ _ and/or_
(eX ;1). The Uni0n argues that the dlreo1: evidenoe provlded by
the Grlevant (eX5)contradlcts much. of the hearsay :evidenoe. In
turn, the lJnlon says the City's hearsay evidenoe should be
ignored when it is oontradioted by direot evidenoe.
35
Next, the Union says that the City has not issued discipline
in an even-handed manner. The following example highlights this
phenomenon. In July 2004, Officers Robert Dvorak and Jason
Roszkowiak, while off duty, drove to an apartment in Glenview,
IL, broke into the apartment without a warrant, and threatened
the occupants over a stolen gun (UX 15C). When these officers
discovered that the stolen gun was not in the apartment, they
instructed the occupants to retrieve it and threatened to plant
cocaine on them if they did not. The City did not seek to
terminate them for this severe misconduct, but instead issued an
IS-day suspension to Officer Dvorak and a 12-day suspension to
Officer Roszkowiak (UX 15C). The Union insists that the
Grievant's conduct with the three arrestees mentioned in the
instant matter is not nearly as serious as the egregious conduct
by Officers Dvorak and Roszkowiak. However, the City terminated
the Grievant even though it issued suspensions of less than 20
days to Dvorak and Roszkowiak for their more serious misconduct.
The Union says that several factors present in this case
mitigate against termination. One is the Grievant's long work
history with the City. Another and more important factor is the
Grievant's highly commendable performance during his tenure as a
Des Plaines Police Officer (UXs 1-13, 16). He has consistently
received positive performance evaluations, and he has tangibly
demonstrated his ability to eliminate unsatisfactory behaviors
when alerted to them. He is a bilingual officer with sharp
skills as a street cop. He has provided valuable services to the
City and he will do so again if he is reinstated.
36
The Union emphasizes the City's very lengthy delay in
investi<;1ating the Grievant also mitigates qgainst termination.
This delay resulted in the destruction of essential evidence,
particularl the video evidence. Unless Department videos are
saved within 30 days of being recorded, they are gone forever.
The instant investigation did not start until more than 12 months
elapsed afte):, the most recent incident with _ in August
2010, at Which point the pertinent video evidence had been
destroyed.
The union similarly emphasizes that the City's awareness of
and condonation of the Grievant's behavior also mitigate agqinst
termination. By terminating the Grievant fa):, conduct it
tOlerated, to", City never gave corrective discipline the
opportunity to work. Terminating the Grievant for conduct the
City condoned is inherently unfair and is diametrically opposed
to the concept or just cause.
For these ):,easons, the Union asks that this grievance be
sustained, "nd the City be directed to reinstate the Grievant
with full back pay, benefits, and seI)iorlty.
lINALYSIS lIND O ~ I t ' l I O t ' l
]>.$ iI)dicated in the stipulqtEid iSSUE) eqrly in this ]>.ward,
this is a dillch<irge for just cause gJ;ievi3.nce. ConsistEint with
st<iI)di3.rd arl:)itpU praQtipe, the burden is on the city to prove
that it had ;iw,t cause to terminate the GxieV<i(lt in !1arch 2012.
This means the City must present /3ignifiCi3.nt Pl':"oof of the
Grievant's w;r;ongdo:Lhg. Con$iatEint with the fourth District
37
Ar:{pi'lliati'l C(>11.ct 's:r.illipg in l)eqatur l'BPA v. C.ij;y Of.DflCfal;JjJ;',%8
/'f,E ,ad 9.49 (2012), the city mUlet hy apri'lpOti<;!er"nce of the
evidEine that th",. GriWahtEiP9ilgE),1 in the it:LJ:egea w:r.'oh<jdqipg ,,,,hd
tlw city also tr\l1st Si;itil'lfy :televi\nt due
Proof Of wrongaOing. Mt,ing oi tyMgrja<JEir J.so!)' .$:J.owinsk:L
1;1);'81;: li'larpEici of tM Gri<'jval1t 'fjcohd\1t tQwarq __
___ ,an4 __ whehh.e r",ceiVe
d
.it lEltter
4a,t.eQApgj)$t 9,20n f:r.'"l;t\K:",ith L. )i)1ht, the attg:r.'hey
l.'",pre$",uting former Pep.llty Cll,:\'e:f' Riohar;4 Rcillkllszka (OX 3; Tr.
327). In t.hil'l le:t;t<;>r, whiCh W<3,Sa44r",s$e4tci Slowin$ki, MaY9:r.'
Martin MoYlan, Polioe Chi",fJ&in",s P:r.'ahdini, an4 City Attgrn",y
Pave Hu.ht r",pO:r.'t",d BO:4kul'lzka's &lli"g1'!ticins that the
Grievantha4 "br.utally beati"h pril'loners" (eX 3). Thts "Hunt
letter" prompted Slowinski to initiate art investigation into the
Hllnt/Rozkuszka allegations against the Grievant, which he did by
diri"oting Deputy Chief Angela Burton to conduo.t
investigation {OX 3, nates 000032). Burton's investigation was
performed durirl,9 approximately the last four months of 2011 and
obnoluded with her investigatory report to. ,slowinski dated
becember 30,2011 (dxs 2,3)
In her report, Burton recommended that the charges against
the Grievant regarding hLs conduot toward _, _, and
_ be sustained (ex 2). Burton conoluded that the Grievant's
actions concerning _ violated the following Des Plaines
Police Department General Orders, Rules and Regulations,
I'lpecifioallyRules of Conduot: 310.02, UnbecomingOonduot;
310.S0,performanoe of butYl 310.34, abedienee to Law and
Ri;lg1,11ati(jns; 3it1.36 Reporting Violations of !,aW$i O:r'dinahdi;lsQr
orders; :3 Btl. 60 ImPartial. Att::\. tui:!,EJ; 390.50 T:t:J;lthful.nes/3; ('1e.net:al
O;Li:!,eI: Hl,14, TramJP9;ttation of prisoners/eitf:,;ens; 'ang (jlene;L<'!l
O'r:<;l.er 10.01, Q'se/R"'PQrtingo.f force (.ex 2).
38
Bi;ltton<llsi:J oQnqluded the Grievant; $actlons tow"rd __
_ anq __ violattI tli<;l DePa:r'tIili;inti s Gener."l
OtdE!};(3i R\ilesand Regl,il&tionsiIlPei;EicaHyRillel> at conduct:
310.02, Unl;>ecoriling Collcj1,1Ct; 310.30, Pljrformallce df Outs; ;310.34,
Obediehe to !,,,W ail'j Regli.l"tion$ ;3'\.0.39 , Repotting Violiltions of
!,aws! Ol:'t11hapce.S, Rul1l brQrti<;lts; 380.60, 'Qijp<lrti<ll Attit1,1de;
390.50 TrutlJ:fli.lnes.8; Gener"l Order Ii .01 !'oc.kUP; and General Order
10.0.1 !)(3e/Reporting df .For.:;:e (eX 2) .
Burtoh' $ ihlTestigati Ve report focused plt imarily on the
Griev"nt's inter<lctions with __ (eX 2), and our
analysis will do the same. Burbonfoun<l that _ face was
not marked when he left the EllmhurstPolice Department during the
evening of August 12,2010 for transport back to Des Plaines.
The Grievant and Offioer Andy Contreras. were the officers who
drove to Elmhurst and then transported _from Elllihurst to
Ii'es Plaines that evening. Both officers sat in the squad oar's
front seat, and the Grievant was driving. _ was placed in
a single-person "cag-e" in the rig-ht rear seat of the vehic'le
dil?ectly behind Contreras. This cage is a clear plexi<jflas-type
enclosure that holds one person, and _ was handcuffed and
placed in the cage (I find that the evidence is not clear
regarding whether or not_ also was in the
rear seat. Because there are no door handles on the inside of
39
seat open the rElardoor fronj the irt1;ef:'.l.or 9f the cat' (Tr.
P7) .
Sgid heqrov$ the sql\aq Gar fram pe;s Plaine!> to Elmhurs.t and th"n
J:jii9l< to pe;s PIg:l.nes. j\s).J.e 'e.ntet'ed the Pes Plaines qi 1;y
goyernfpent J:)'l\iI4ing'C6mpleil., !Hi pulle.ct into a. Gity parking gar<;\g'El
IQogt$d itfinj$di{iteiy J:jEf4ind .(to t4e north Of) Git1' Hall. lie
pnlleq thO' squad car int.a the ground HQot' Of the parking d$ck
an4 stopp$CL The GrieVillit e:8:itect the front: seat, wal1s:eq "r.o\rotl
t48 rear of t48 yelliQ;Le to t48 right regr daor, apen$d t4at door,
Md pnnch!>q_ iii tlle aoe.
The Grievant stat!>d that llis. reas.an for pull:i.ng the car into
the parking ".topping, exiting tlle v.ehicl$, wglking to. and
then apening the right rear dQor, and st:l:'iking _ was the
Grievant's concern that _rnigllt have defeated his
handcuffs. The Grievant stabed that .he "naticed that _ was
inthebaok seat moving around. As wenea.red the police
depaEtment it appeared to me that his mavements were thase of
that af somebody who. was trying to. defeat his handouffs" (eX 5,
p. 80). The Grievant further e:>tplained that _ "was moving
fram side to. side, histarso .and shoulders as .if he was trying to.
manipulate his arms and hands" (ex 5, Tr. 95). The Grievant said
his blow to _,whioh struck _ in the ri.ght eye, was
designed to distract _ so. that the Grievant could check on
the condition of _ handcuf.fs (eX 5, pp.83-84). The
Grievant explained that he pulled the squad car into the main
40
fiQ()rof t4eparJd1).g gqra.ge t() do this oheck peOp,ll$E) t118. pic\)Cking
de.Ok wa!3 iJa oOhfihEid atea." (C 5, p. 83.). t4e Grievant
>"!tr].lqk _illE) the QotlaitiQh Gf_' hqndouff>"!
;and d"terttlihe.cjthat: _ MhdQuffs h;ad hot peeh a\lf\li;i.1:,ecj (ex
5,p .. !)4). Tb,.e GrlEiv;al:lt t.):t",n got pack :);n th\l squad qat i;lh(j troYEl
tb,.6 yery $40rt di>"!t.ij.tioe frdj(l the p<J.l;kL1.lg g"ri'ige t.o tbep9lijJe
bui!qi1.lg. At th;at pointhe;a!J(l Contrrr;<SE)>,,!cort:ei _ ibt()
the p",p!irtiWbt builclirHJ to be prqoEiIis",q{QX 5,1'.87).
st!l.ted he d:ld not: ipfo1:'ffi Gontre.ras wh!l.t h", w!is aoing $0 that 4e
woUld hotale1:'t _ to 4i$ f01:'thcoming a.ctions (ex 5, p. 83).
As .arestUt,Contrepa$ WilS not ihVoly",din th\le:E:l:ort$ to GhElck
on the condition .()f _ hE\tldcuffs. The Grievant stated that
Contreras did nothing while he (th", GrieYilnt) was int"'1:'iloting
with_ in the back seat of the car(CX 5, Tr. 82-.85). As
this suggests,Cont1:'e1:'as did not ilpply ilny f01:'oe to_.
The Grievant also stated that he did not 1:'epo1:'t this use of
force incident to any othe1:'offioe1:' in the Depad'ment, nor dldhe
report toa member of the Department oommand staff that he >"!truck
_, nor did he fill out any written Department report to
indicate that he had struck _ durilngtranspo1:'.t (ex 5! Tr.
In her investigative report, Burton said that the Grievant's
efforts to distract _by striking him in the face on Augus.t
12, 2010 '!a1:'e simply unjustifiable, egregious and not refleetive
()f our standard operating training or procedure" (eX 2, Bates
Ob0015}. She also wrote that the Grievant) s conduct toward
41
_ " .. viqlated DeP<l"r't;meilt pql:l.cY<lhd procedure. Ili!;
[tl1", Grievant'ill .cQndudt was not tl'ltically qriebt)d Q;(:
re'asonabl) [sio] platp'lible, but J:l'ltl1.er :t:.etaliatory" (GX:2, B<!tes
0(0016). .In her test:i,mohy .a.t the :i,nst<lnt hei;lrihg, Burton
test.:Lfied thilt the Griev<!nt's Me of foroe against _ t.O
chebkthe cohdition. of _ handCl)ffS "was 11!!justified and
unneoeSs!i;r'y"(Tr. 240-24.1). l'lutton also st<lteq th?ttM.
Grievant' seXj?lilnation for hisUf3e ot tqroe agi;lir!S:t. _ w<!s
not dr)di]jlea.nd did npt i n a J ~ e $ e n $ e (Tr. 88, 254).
I note that the Union doeS not se))c to defend the Grievant's
use of to):'c)ag<!inst _ :rhe Union admits that the .. Grievant
'(misapplied a dis.t.:t:'adtiV'e blow in oJ:1der to. move _ from the
do.or" !3-TId the "Uhiolland Grievant concede th)r) were better
alternatives to handle thesituatiQn" (Un. Br. 17). Similarly,
th) "Union c.oncedes that Officer Elueno misapplied force on _
_ "(tJn.Br. 24).
In sum,there is no dispute among the parties that Grievant
Bueno struck __ in the tace :as he sat handcuffed in
the rear seat of the squad car that had temporarily stopped in
the Cityparkinq garage.
The Grievant 'sexplanation of how he used force against
_ in the squad car on August 12, 2010 is consistent with
other evidence (CKs:6, 12). At the same t-ime, there is every
reaSon to doubt the Grievant's explanation of why he used force
against _. 1'he" Gri"evant testified that he wasconcernBd
that _ may have defeated his handcuffs (ex 5, p. 80), I
note that if the Grievant was genuinely worried about _
'1
<,"
42
s"1.atedih tb"1:d\)4t fropt 11"1.at of t.be qat. HOw,"1vEit, tbeGtievatit
adm;i.Ue.d he made PO etfoxt of ?lily kihd l;lefote,du:6ng, or after
the incident with _ to ipfOrmGotiti'.$i'as oJ bi13. c,;op,c,;<';irn "Xlq
to seek bis assist1'lnce (eX .5, pp. In aqdition, ve'PY
olose at band were offd.oers inside tbe Deparbneht bui-luing. wbo
could come .outside arid offer assistaricewitba'sillg1e C&11 on the
police radio, and the Grievant did hot s.eek theirassistahce.
b. C. Bupton and OityMana'iJer SlQw;i.hski s\id t4\t it defe.atect
common sense for the Grievant .to stop tbe oar just short of the
police station where additional officers were available to .oer
assistance and alsoton0t inform Contreras what the Grievant was
.doing if the Grievant was genuinely concerned that _ may
have defeated his handcuffs (eX 2, p.IS; Tr. Chief
Willlam E:1,tshner, who has had many years' experience providin'iJ use
o:/; force training to policeofficer$ (Tr. 469-471), also
tEistiLf.iedthatthe appropriate aotionforthe Grievant i:l:_
re&lly was trying to 4\'lfeat h:i;s handd1,tfis would be to j!pullup in
thE) pa.qk of the statioh, cilll :for ad.ditlonal assistance, have
ad<:iitio):1al oif:i;cers come by, get out with your p(irtn.,:t', oontaln
n.im" (Tr. 'Ie 75-47(i) , The evidi)nce :hm)ic<\tes the Grievant did none
0:1' thel3e things, In$te",4, t.he Gr:i,evaJ;lt ;i.gnor.ed both
lQl'!EH'lbhand 130urqes at al3si$tapee and cbeCkedon _ 1>Y
gQiti<;T tQ the right rea,r c\r d.oor where _ was seated, an(1, by
hitn$elf, openi/ig tbiscar door. The Griev<\nt qid tbiswitbout
giving: _any verbal CO!1)tjlan<'i to move aWaY from tbe r.ar door
wMJ;'e he WElssittifig (OX 5, p. 84). If in tact _ hEld
de:E.eiited his ha,tidd'ufr.s, the right rear
dooto.f thEj sq\'laQqar W(j111d hay",. o;efer",d _1J.h.9Pport1,1\lity
to !;\$;;tpefr9rit custody, l\.S n6teq i'l110Y6i the tei'l:r:cl90:!;,$ qf the
$qUEl9 Gilr <J!lnn6j: loe 9pene4 frotn inside t9" <Jar (Tr. 1:37), but if
_ }:lEld defe;;tted. hit) ha)).Q.cuffs _ CCiiJltl htive tried to
fprc", his wilY out qfthe right reardQQ;ttift$t th$ Grie\TtitLt
opened i.t. As th:Ls $uggeiltll, I f:L@ th.1;lt the GrieVElPt'$
eXPlanat:Lon for why he l1elieveQ. he Meded to ,strike_ in
the fElloe is not at allcr.ectil1le.
43
The credibility' of the Grievant' se.xPIElna.tion is
additionally h!ltmed by hill 61airitol"why' he pulled the Sq1,1ad car
into the p!lrking garage to check on _ handou,:J;fs. He s.aid
the parking lot outside the baok door .01' th.e Department building
is "unsecured," and the Grievant believed he should stop the car
in the "confined area" ,of the .garag.e - fTthe pElrking dock [sic] is
a confined area, if he _l would have defeated the
handcuffs and attempted to escape he would be. running in a
confined ar'ea as opposed to an open street where he might h1,1<:1:
l).imselfor hurt somebody else . ." (ex 5, p. 81). It is true
that the parking lot outside the back door 0)= the Department
l:)uilding is unse(mred, but nevertheless that back door. is the
place where the Department routinely brings prisoners and t:hen
tr!lnsfe);s them from vehicles to the insiae of the building.
E'urther,the Grievant's "u,nsecured" claim completely ignores the
f",ot that multiple PQ1:Lce persohnel are available for assistance
insi(je the building's baok door if there are any problems
44
buil.dirtg,
M(l:r:eimj?drti;\nt, t.he .G:r:ii3vant'13cl!'lirl) that j?!'lrk;lng gi;\Plge
off",red !'l "Qo.o:UMdm;e.a," in wl1i cl1 tq cMqk On _ ):i"pdcPffs
is ahs,J1\Jti3 rtqnSense. A.s we obl3ex-vecl ;In !'l i tevii t to thi&
garage du:r:ing thi3Nbvi3mhfrc 4!1i 2Q12qa,y of the i1}st;'oli1t Maring
(Tx-, anclas13\Jrton test.ii",ci (Tl". 86-87), Jjoth "'nds of
the gar!'lge!'lre compl",tely open, as s.hown in the ex 16
photogx-aphs. I note that a prisoner who ",soaped from a police
vehicle .On the first floor of this garage would have little
diffioulty fleeing out of the garage into the surrounding streets
of ))",sPlain",s. Acoordingly, I find that th", Grievant's
"confined area" claim holds no water whatsoever.
Why, then, did ttl", Gri",vant strike _ on August 12,
201t>?The Oi.ty says the reason was theGrievant' s desire to
retaliate against _ for _ aoM.ons durlng the failed
Delta Uni.t d:cug buy in J'anuary 2010. As noted above, during
J.iJ.nuary 2Dl0 thE) Grievant Was a member of the Delta unit! a group
of poli91a g:ffiOlars who I3plantttreir work time oomoatt.irrg narc.otics
trai'figking in the 01;ty i3.IJ.d surrounding arla\.
-
As this
mEjEjtirtg prtfplgeci, deoided tOd:epa,rt tlJ:e soMe and he
drovEj""way at high 13peed" In the process, _ na:t:rowly
rni$secihitt,ing DE'llta Qff:Lc.ex- E:r:ian Hart. The Di3lta ofHt:ex-s wex-e
verY qi13a,PPoinj:ec1 that their attempted drug buy went .south. Soon
45
thi'rea1Oter, they o):xtaihetlan l'irrestwMJ:'aI)t :Eor __
for aggravateg battery (OX 2, Eat"" OOOOO!} C;X:5, pp. 65-6'1). It
wai'i t . h i ~ arrElst Warran.t that a\.1se(i t)w Elmh)1rst poliM t6 plaG\3
_ in custo(iy (iuril:lg a rotitine traffic $t6p dn A,Ug.ust l,;l,
20;LQ, inform tne Des .PC\.aiMs Police I)epartme).1t tJ;l<;l.t tJ;ley
(Elmhurst po) li<J.ct _ i'iudhqld _until Pel3Plaihe1'l
officers (the G.tiev<;I.tit<;l.nQ Oontr\3ras)artive,(i to pick hp_
andtraI)l3p:ort him to Del3 Plaines.
Th,,]!'e il3 other evideI)c.e supportiI)gtJ;leCi ty' 13 ;t!$taliaticn
contention. During the Grievant's November 2011 ititerrcgatiQti,
the Grievant denied having anyconvers.ation with COt\trerai!during
the ride from Des Plaines to Elmhurst to pick up _(ex 5,
pp. 73-74). However, durin')' Contreras' liIovember 2011
interrogation, he testified that the Grievant told him
(Oontreras) about the J_anuary2010 Delta unit incident with
_ while the two of them were on their way to Elmhurst (ex
6, pp. 13-14). In addition, Elmhurst Officer Brandt Cappibelli
test1fied that he was the Elmhurst officer who actual'ly handed
oV\3't: _ from Elmhurst's custody h' bffioers Bueno and
Cop:t:r:eras during the evening of August 12, .2010 (1'r.291-297).
C?appitel:Li t"stified that vihen Officers Bueno and Contreras
arrived, he brought out _ :Erom the holding: cell and handed
him over to the Des Plaines o;Hicers. Cappite11i testi:Eied that
when h.e dj,d this, "O:Eficer Bueno had asked him _I if he
[_I remembere(i WhO he [Bueno] was"(1'r. 295). Cappitelli
rep9rte(i that _ responded that he did not rememb",r err.
295) .
46
Additionally, the eVidence shows th"t, during the Gr!ev"nt'$
interrog"tioJ) in November 2011, the Griev"nt denied having any
conversation with_ in thesquitd qar during the drive from
Elmhurst back to Des Plaines on August 12, 2010 (CX 5, pp. 78-
79). However, Officer Contrerits testified duri,ng his November
2011 interrogation that the Grievant and_ had a
conversation in the car about the January 2010 incident.
Contreras reported that _ said to the Grievant "I didn't
know you guys were cops" (CX 6, pp.
This testimony from Contreras and Cappitelli establishes
that _was very much on the Grievant's mind during the
Grievant's drive to Elmhurst to pick up _ while in the
Elmhurst police stabion taking custody of _ and during the
drive from Elmhurst back to Des Plaines.
In his interrogation, Contreras also reported that IIIIIIII
was not resist"nt when they picked him up in Elmhurst (CX 6,p.
21), and that during the drive back to Des Plaines _did
not complain about anything or say anything that would proVide a
reas.onto stop the car before arriving at the nePitrtment (CX 6,
p. 37). In addition, Gontreras (lid not report any sort of non-
compliitnt behavior by _ at any pointdu:i;'ing the trip bitck
to Des Plaines (CX 6).
The City argues that the Griev"rit's actions toward_
On August 12, 2010 were in retaliation for_ itlmost running
over another Deltit unit o:l;f;i.cer during the ,JitnUitrY 2010 failed
drug buy. This City is highly piitusible in light of
Cappitelli's and Contre:r:'as
i
testimoilY about the Grievant's
47
corarnents to Contreras during the drive Drom Des Plaines to
Elmhurst on August 12, 2010, the Grievant's question to _
when the Des Plaines offlcers picked )IP _ ih Elmhurst, and
the Grievant's conversation with _ while he and Contreras
were driving _ back to Des Plaine.s from Elmhurst on August
12, 2010.
Pulling this together, I find that Grievant Bileno's
explanl;ltion for why he pulled the squad car into the City garage,
exited the vehicle! went around the rel;lr of the car to the right
rear door, opl"ned it, a,nd struck_in the face is not
remotely cred:i,ble, and his account will not be credited.
I slso find t.hat the Grievi"nt' s tots 1 and complete failure
to report his use of force agsinst _ on August 12, 2010
I'einfQ:tceS thes", conclusions. The Grievant admitted that, after
he and Contreras pulled up to the Department building and
escorted _ inside, he did not .tell any other officer that
the Grievahtbelieved _ was trying to defeat his handcuffs,
he did not remembeI' if h.e told a,ny other officeI' that he had
struck _ in the hea,d, he did not h.ave a conversation with
Officer Contreras about striking _ and he did not report
striking _ to any member of the command staff (CX 5, pp.
89-90). The Grievsnt also sdmitted that he did not fill out a
use of force report about striking _ nor did he fill out
any sort of report about striking_ during transport (CX 5,
p. 90).
I note the following about the Department's Rules and its
General Orders:
48
The "e;tsion of General 0;tde;t10.Q;I. ("GO 10.0;1.") that was
on AU<JU1jt 12, 2010 sti'ltes that Del?artroent
pol1,Y is., :in I?ertihentpart, "Of;f'iCei"s $houlduse only
the amount of force nepE'll'sary toe,ffeGtan arrest or
control a pe11s0!). The Qpjebtive of tM Us$ of force is
to overcome resistance offered Py El!) offender" (eX \lB) .
J;nSe<;itionlD.01,10 Qf GO 10.01, . 'tpi(l. poli<::yrnal),dates
that "1:\.11 Officers w;LI;l. imme4iaj;$ VE):I;p;;tl rePort
to tJ:;eir suPervisor followihg"nYU:8e ot:f:"Q;tceilhd fiLe
an aPl'rOl'riilte case :rePort t11i;1t dpOl:!jt\e.hts tl;ie actions of
thesll!lpeot tpat heqe8sitated tM use of force, U,e
re10JsQhs why tM offic.er u8ed f.orce, as well asa,ny
suspect complai!)ts of injury,meqida'l tre;;ttment received,
or refUsal of medical treatment" (ex. 4B)
The Grievant's descriptio!) of his use o,f fprce a9"ainst_
indicates that the Grievant was not trying to. arre&t 'JUmt!JR8, nor
was_ offering any resistance to tl;ie Grieva!)t (ex. 5, PI>.
81-84). As a result, the evidence indicates that there was no
need of any kind for the Grievant to s.trike _ t.o gain a
"tactical advantage" over him. As this indicates, the Grievant's
use of force against _ blatantly violated the Department's
use of force policy. In turn, I find that 'the Grievant's use of
force against thehandcuffedllllllllon August 12, 2010 was
unnecessary, unjustified, unreasonable, and clearly in violation
of GO 10.01 (eX 4B).
Similarly, the Grievant admitted he did not report his use
of force against _, which directly violates the
Department's use of force reporting mandate expressed in Section
10.01.10 of GO 10.01 (eX 4B).
Moving on, I note that Department Rule 390.50 mandates that
"Officers and employees ;;tre required to be truthful at all times,
wl;iether under oath or not" (eX 4). As noted above, the evidence
'the Grievant's explanation for why he pulled his
49
sq:uad car, w.ith the handcuffed _ in the back seat, into the
parking garage during the evening of August 12, 2010 is not
remotely cren.:Lble. }\.s a result, I find that, during the
Grievant's interrogation on November 16, 2011, the Grievant was
not truthful in his eXplanation of why he struck _on
August 12, 2010 (ex 5).
This untruthfulness conclusion is reinforced by other
evidence. In particular, during the Grievant's November 2011
interrogation, he was asked if he ever offered _ medical
attention (ex 5, p. 92). The Grievant replied that he did not
because "there were no indications of injur;y" (eX 5, p. 92).
However, this aspect of the Grievant's testimony is directly
contradicted by five other Department officers - Sgt. Mike
Holdman and Officers Brian Hart, Tom Boni"k, Tom Stancato, and
Ben Ruzicka - all of whom reported to]3urton during her
investigation that they noticed that_ had a facial in.jury
and allot whom reported that they ottered_ medical
attention (Gx 2). In addition, Bueno's statement on this
dim",n$io)l is dirf;jot1y contradicted by August 12, 2010
booking PhotOgr"Ph,which shows _ right eye area as
bruiseq and his right eY<3 "'" swollen shut (ex 12).
Addition]' reintorcement comes from Contreras' and the
Grievnt's interrogtion testimony desc;dbed above. As noted,
the evid<3nce shows tll.at, during the Grievant's interrogation in
November :20H, the Grievant denied h",ving any conversatioh with
Contrera", about _ during the ride tram Des Plaines to
Elmhurst to picl>: up_ (ex 5, pp. 73-74). HOwever, during
50
Contre.ras' interJ;'agiltian, he testified that the Grievant told him
(Contreras) about the January 2010 incident with _ (eX 5,
Pl'" 13-14). In addition, the Grievant testi:i'd,e"C during his
intBrrogation that he did not converse with _ in the ",qt;tad
car during the drive back tobes Plaines (CX 5, l"p. 78-79).
lIowever,Officer CantJ;'eras testi:i'ied duringh.is ))Jovember2p:Ll
interragatian that the GrievClllt and _ !;tad a cOnVer$atioh in
the oar about the JanuaJ;' Z010inGident.Qontrera:s rE!j:>qrted that
_sa.icl to the Gri'evant "I didn't know you gliYS wer$ coP'>"
(ex 0, Pl". 42-23).
TELken t0get!;ter, thisevidjOlhde indiGELtes \:;hat the Gr;i.ey1;\nt's
"defeatEid h<ih(ldufts and tactic",l MV<iht<ige"e,xplanatian for why
1:)e pulle.;! the sqU1;\.;! car ;Lntp the eity paJ;'king garage, Epdted t.he
vehicle, went to :tChe O;'!.J;' d9Qr where_Wasse1;\te.;!, ari.d.
stJ;'uok _in thE: fa.ce is untruthfl,lL :As such, thi.s GrieY<int
qfN:t:'$dUJicler 01;\tb" 'vi9IatedDepaJ;'tmeht R.ple 390.50.
))19ving fr&t\ the. Gi;iEwant' S G9ncluct t9waJ;'d _ an :August
12, 2010 to :the Grievilnt's c,,,,,.d1)C,t taward ___ qn 9J;'
a.l;>i:mt 20, 2010i t1:)e evidence Sh9WS that :the Grieva.nt
moved _ from his GE:ll into the pink l;'.oom, wher$ th.e tW9 .of
them were out of sight .of other j:>risoneJ;'s a.nd .officers (ex 5, pp.
23-26). Th.e Grievant did not tell ELnyother officer whELt he was
ctaing (eX 2, p. 24). The only ELGooun:tin the record a.fwhat
tri'tl1sl"ired in tlie. pink roam on thELt. dM:e :Ls :the. Grievaht ' s
eiplanELtian. In the GrieYELnt' sNovernb.$r ZOl1 interJ;'agatian, the
Grievant testifieq th.at _became "angry arid aggressive"
toward the G'dev<tnt (ex 5, p. 26) . the GrH,vant t.estified .he
51
'tOld_ to "t<!y ",Wi;lY frejin hiin (the G#e.v<!l1t) ,h1:!t_
did n.ot do so . The G#ev<!nt te$tHied thi;lt _tried to grab
hiIll, soth!3 Gtievi>nt p.Uridhed _ in the nq$e :Lxi<! Tn"mner that
caused_tO experie!:le it blobJ;iy llOIle. (C){;ir pp. ex:
2, pp. 6(9). :the GH.ev<!nt a91:;ee13 that he did AO.t 'i;l11 fQr help
when_ b.e.came angry ahd 'aggressive toward him (ex 5., p.
28). Arter the incident the Gri.evant did not. complete .a report
concBrningthis use of force eex 5, 8gt. ,Mike
Holdman filled :out a "criminal offense report" for batt!3ry
listing _ as the Offender (tx 13, Bates 000317-31'9),
In the narrative section of Holdman'S report, Holdman wrote
that _ swung his arm at the Grievant and, arm
struck the Grievant in the face and neck (eXU, Bates 00(319).
This infQrmation was told to Holdman by the Grievant (tx 13,
/Bates (00319).
:the Oity says that the Grievant's first duty during this
in'teraotiQn with _ was to avoidoonfrontaticm., The Union
sayl' that the Gt'ievant h,adt/:le right tQ defend himself against
adva,nQe's, In light of the fi;lct that the only evidenoe
we\l.ave i;lpout. What happened ))",tweei) the Grievant and _ in
the pink room oorol'S f;tomthe Grievant, I find th",t thE).eyid",n<:!e
9(}e$. not $llPP91:'t a dOnl11sion tlii'lt the G:t:i",Vgn.t usetlfprcein i;Il1
llhJ\li3t;lfieo.ejr <ix",ss.iveroatlner i;lgaiu$t _. 1\,t the !la.m",
time, I.f:i,n.d tn.;)'t the GrJ,evant did not r<iport hi$\1se of :t;o.:r:Ge
!igainst_ whiCh failU)':'e vi.o1EitedSebtio:tl 10,01.10 of GO
10.01 (ex 4B) .
52
Turniug 1;q the c:;ri$vi'lnt' sinte.ril-.ctii;} wi t4
qr ab(jut June 20Q9, the evidenoe shciws l:ii'l.G :P\"!e.n
arrested (me dliY i and lifter he had. beep taken to the C;i ty J>qlice.
station. he made a c(iilintent to another pr:i.sonerthat J:1\"! _ waS
goipgto"fUck"tl:ie Gy'ieVE(l1t's d<l\;lgh,ter (CX O.i p. 02). Another
Department of;EJ.i;er 6verhe<lrd_ make this GoID1t\entj and this.
other officer reported _comment t.o the Grievant. The
Grievantagree$ he then went to_ (jell, entered the cell,
told _in a loud and angry voice t.o hot eYer go ne.arai1Y of
his [the Grievant's] cbildren, pushed __ then
apologized to the Grievant, .and the Grievant left bis cell (CX 5,
pp.53-55).
Tbe evidence about the .Grievant's incident with _
indioates that the Grievant's. use of force against _ was not
necessary, not ;ju$tif'.ied, and not intended to aocomplish any
police ta$k. The Grievant entered _cell and pushed him
solely becaU$e he was mad at _ for making a VUlgar comment
apout his daughter. The Union admHs that the Grievant should
nqt have pushed _(Un,Br. 24) .A$ a result, the Grievant 's
)1",e of forc;magain$t _ wa$ improp"r ang violated the City's
\;Iss of force policy. Additionally, tne Grievant violated the
citY'$ use of force policy :py "ot filing a report about tbis U$e
of foroe iJ:iii;leht.
Th$ oity sought the Gri<;Jvi'lnt''l termination before the Boa.rd
of Fir<;Jan.d Polic\"! of t.he City for the Grievant's
Vi(ila.Uoh of a. large hllltil?erof'D<;Jpartment Rule"li'lhq c:;eneral
Qrder$ (CX 7). H(jw<;Jv<;Jr, during the ihst?nt a.rp:i.tri'ltiOh
53
proceeding the City has focused on two dimensions of the
Grievant's actions, (1) the Grievant's use of force, including
the Grievant's failure to report his use of force, in violation
of General Order 10.01; and (2) the Grievant's untruthfulness, in
violation of Rule 390.50 (G.Br. 2-4). Accordingly, in the
instant Award I have followed the City's lead and not sought to
determine if the Grievant also violated the other Department
Rules and Regulations, or General Orders, specified in ex 7.
pulling this evidence together, it shows the following.
First, the Grievant improperly used force aga:inst __
al1d __ , in violation of Department policy, and he used
force against _ -. for the reasons described more
specifically above. Second, the Grievant failed to report the
use of fO+,ce against _, _, and_. Third, during
his Noyember 2011 interrogation the Grievant was untruthful about
why he used ubjustified and excessive force against_, also
in violqj:ion Of Department policy. As indicated in the analysis
above, the evipenGe provides very stroIlg proof of the Grievant's
egregious misconduct.
Due process considerations. At the same time, there is more
to the concept of di!,wipline for just C,qUSe thi;m proof of
wrongdoing. The city also mU;;Jt satisfy the due process
considerations inoorporated into the jllst cause concept in order
to demonstrate that just oause existed for the Grievant's
termination. }\s noted in the I3tandard arbitral reference work:
1/ The primary reason arbitr,ators have inCluded
certain basic due process rights within the concept of just
cause is to help the parties prevent the imposition of
discipline where there is little 0:1; no evidence on which to
hase .. a . ... l'h'Us( QQnsideri3.t;LQ!lS of
.;lnQustri!ll411$. j?rpcess ClS ClcolllPonent pf just "'a11.8e is an
itlte<)T'qlpClrt R;fthe anaL:YS;lJ3. for mahy
J;trl;)it;f:'i;\tO):'Il." (EIJ<;6i1r:l.ilnd ElxQlir:L, 7
th
e4., p.
QitEit:LQll$omitteql.
54
l'he Union hal;! alleged the City GOmm:l.ttedmultiple d'Ue
Il;t'ocess shortcomings, One is that the Gii.evilnt Will" ther.eeipient
of 4isPilra'tetreiltment. Another is that the City's investigation
into the Grievilnt'.$ actions. WClS so tardy that it harmed the
Union's ability to defend the Grievant. A third is that the City
condoned the Grievant's conduct over time even after it was aware
of hip actions toward the three arrestees featured in this
ma1:1:er.
On the disparate treatment dimen$ion, the Union notes that
the Grievant's discharge was based primari.ly on his use of force
against__ The Union has compared the Grievant' s
conduct and his discipline against other city police Officers'
conduct and discipline an.d condluded that the Gri",vgnt !las p'een
the reCipient of dil3parate treatment.
In tIl{ i51HL, the Union presents the ana <1isd1pline
i$$11ed to. during the PctstsE>veral YE>ar$.
The Union argl1es thij;t SQli;le Office;t's ",f(gaged in severe misQQnQ11ct
and were i$SWK! lenient disoipline. The UniOnpoihts
partio11la;rly to Robert Dvorak iin<1 JaSOh RoszkQWi<J.k. The'>
evigehce indlbatest.hat in July 2004 these two of;Eicers went to
an ctjJartn\",ht in Gleh17ieWiI):" entered the apartment without a
W'arraqt, and threatened the Odqupants over a stolen (lun. Upon
learning t)1,at ttle 8tolen "11111 Wils not in the apartment,t!)"
officers q.irected the o'POnpants to retrieve it and threilteneQ to
55
get them in legal trouble if they did not (UX 15C). The City
learned about their misconduct, but it did not seek to terminate
them. Instead, the City disciplined Dvorak with an 18-day
suspensi.on and Roszkowiak with a 12-day suspension (UX 15C). The
Union argues that this highly severe misconduct is more serious
than any misconduct the Grievant may have committed, yet these
two officers received only moderate suspensions.
As another example, the Union also notes that the City
argues that the Grievant's alleged untruthfulness constitutes an
independent, stand-alone basis for terminating him. In
contrast, Officer Larry Schroeder responded to a domestic
disturbance call in August 2006 and did not take any action on
the call (UX 15K). When asked by two sergeants about his lack of
action, Schroeder gave them a completely untruthful response.
Schroeder subsequently admitted to lying to the sergeants about
what he did on the call. For his admitted untruthfulness,
Schroeder received a three-day suspension (UX 15K) .
I agree that some of the discipline levied against some of
the officers included in UX 15A-L appears to be rather lenient in
light of their misconduct. However, I note that the officers and
their misconduct contained in UX 15 do not involve anyone charged
with use of excessive force against arrestees or other prisoners.
I also note that the officers and their misconduct contained in
UX 15 do not involve anyone charged with untruthfulness during a
police interrogation. As a result, the officers and their
misconduct included in UX 15 are not comparable to the Grievant
and his misconduct.
56
Look;i.pg itl",tead ".t t.M cUI'!ci'pl;Ltle "greed to by tM City, the
VniOp,<tlld Officer Contreral'!, Coritrej:'<\s "gi;,eedto a 120-d<\y
suspenl'!iop without pay,,, li;l,,,,t chaneagre.ellent to be in effect
for th)7e.e ye4rs, arid 'partiula);:ly th.at the City 11ad s.uffident
C."Ul'!e to terminate him for 11isaotions in t11e __
incident on AUIJust :1.2, '20:1.0 arid thereafter (CX 15). Coptre:r:'as/
actions were more comparable to theG:tiev4nt' sactions during the
_ incident than the aotions of theoff1ce);:$ inc.1Uded in VX
15, and Contreras and the Union agreed that the City had
suffioient .cause to terminate .him for his conduot durin.g this
incident (CX 15). AccordinlJly, 1 find t11at t11e Union's reliance
on the discipline specified in t!X 15 to reac11 its disparate
t)':eatment contention is not persuasive.
Moving on,another due process consideration is that
discipline must be isslled on a timely basis. In this matter.,
neither tl)e city's investigation into the Grievant's allelJed
misconduct, nOr the Grievant's termination, occurred on a timely
];)a:>i$. The three use of foroe ipcidents the city investiIJated in
late 2011 oco\lrred in the surtli'n'erof 2009 _j, .January 2010
(_), El.hd AUg\lst (_,IlQWeV)J;, the City did n()t
ipvestig<\t
e
the.se inciden.ts until sometime af1oer August 201.1. 1\s
forme:t City Mani;lger SJ.owinski te.stified, h" did hot lea:.;n
these <\lleg<\tiqhs ag<1ih$t the Grievi'\nt uhti.l l)e received the
Mgust 20,n letter :EromI}<;\it.h HlJJlt, former Dput:Y ohi<;\j:
RQzkurJzka
'
" at;torrtey (O)L.3! Tr. 327), The evidence iAdicates
that fbtmer D. C.Bu;t:ton (JQndudt.ed pef: inye$tigatibh d\lring the
57
2) .
Why de$th:L.il deli'\Y ijiatter?Qhe re;as!) ist)J.at thi/? Clela!!
:rn(l!! have resu1teClihthe lOllS of pertinent video E'!vidence of
t)J.eGe inci.dE'!nts. that; mg.y hitve PE'!E'!n rE'!cO;!,Cleg. py thE'! DepClrtml'nt' s
video ci'\I1\erail, but w)J.ih wa$. llot p:tesE'!r\reddlle to thE'!
PepartI1\E'!nt'G poHC:Y .of not savi!)g vide.Qs unless they are mark;ed
for ila.vingwlthln: thirty Clays of bE'!,ipg recordE'!d (Yr. 87) .We do.
hot know whatperYihl'ntact:L.tlJ'lilClnd PE'!haviorG, ifa!)y, involving
thE'! Grievant and _, _,g.hd/or IWererE'!POrded on
the DepClrtment's video systl'I1\ and not saved.. Nevertheless, it. is
possiblE'! that s.ome of thesE'! intE'!ractipns )l\ay have bE'!en rE'!.cordE'!d
and then lost, and somE'! of thE'! lost vidE'!O evidence might have
bE'!en helpful to thE'! tTnion's dE'!fE'!nsE'! of thE'! Grievant.
Similarly, a relatedrE'!ason is that witnE'!ss mE'!mories mClY
have faded during this lengthy delay. I note that most of the
information rBported in Burton's investigativB r.epurt was
obtained duringher interviBws with a Large number of individuals
(OX 2),arrd it is possible thati3urton might havB obtained better
information if therB had been little or no delay in initiating
her investigation.
Ultimately we will never know what information was lost by
the lengthy delay in conducting the City's investigation. But
the possibility that this delay may have prejudice'd th",a):)ility
Of the tfniontQ defend the Grievant in this matter cannot pe
Qverlooked. Accordingly, 1: find thClt the Mng delClY in thl'
(Jity's inve&tiga.t;LonOf tI.le Grievant' smiscOI)duct, and the
58
concomitant. delay in disciplining the Grievant! .means the City's
dis<;iharge of the Grievant was procedurally flawed.
Another relevant due process consideration is that an
emp10yer's rules must be enf.orced if discipline for rules
vio.J.iJ.tions i:;; to j)e,wcepted. AS not:ed in the standard labor
arj).itratibh r<iference Work:
"Ae:'bit;;aj::Cirs haVE? nq1;; h\,).",i.t<;lt
e
<:1 tod;i,stwppena).ties
where . thE! empldyerdver a,Per:Ldd Q:ftil\ie hCil'. dtidoned
vio).iiti'9ns Of th('j rl,l16 ill. t4ePMt. l:.a.J{EOij1;fCir(jett\ent 9f
r1.1l$$Ut.ayleClC,l emp1oy'iie,s t::(j ;q::;a,SCina,b;Ly 'Jjel;leVe tMt t.he
Ggnquct; i.n qile:,st:ion is. t()leJ;'a.t:ed. by )J[a,flag"fli\ent.. j;1vE!llwhere
tM lOirnployeeha.$ engaged..incpndubt thCito is.
iirtP.t9Piti:; sllQh('ls threatening .asuPerviMt; the faq.t thi'lt
iUa;na;gEOimen1;: . il\ipo$e d.isCiplinlOi in t.M.:past dan
pea .sigMl thiit 1!J1l'!GCePt:i'lP;le l;iel;lCiVior will not be
MnaJized." . (E;lk:dllri E!.nd E1.koildi 7'"et!., p. 15-74,
citationI'. omitted) .
In the ihsta.ntittatter, there i$ evidence that members p:f the
pepartjhent co.tnm<'!l1(;[ '('<taff knew apout th.e Grievilnt's improper use
Of forc> agl3.in,starresteesafld did nothing about it. For
iIl$ti'lIU:)e,i'l.ttet t.he. Griev<tnt' $ $nCDunter wi, th _ 1no.r apout
.June 2009, the Grievant test:Lfieq duril:)g hi$ ihterrogation that
on thed.i'lY of thi'lt enc.oilnter O:ftiel.' Matt Boll",r discusseg the
Grievant's intel.'aGtion with _ in the presenGe of D. (:;.
Ro"l\:usz,ka and the Grievant (eX 5, pp. 5.a-6Q). rhe Grie.Vant's
testimony ind.ioates that a meittbe'r of the Gotnmand staff .was awate
of the fact that 'the Grievant $hove.d _in _cell.
However, the Depa;r;troent did not conduct any inv.estigation into.
th.e .Grievant' s use. o.fforce i'lctrairist _WhiCh sent a signal to
the Grievant that his use of :force against _ was a.ccBptable
to the Depi'lrtment.
59
S11Qrtly tifte:r tbe. (>;t'iev.i,itit' $ $Gb11nt;er w:i;t:h_ in t;h.,
pinJs, rOQIitin ,Ja:n\1a:ry 2pio, Whet'e the Grievapt 11ag obViously useg
force .0\1 _, Sgt.. /lblch!lanwrot.e a rep.o:rtdOC\1mertt;i.ng t):).i,$
incident (ex la, J:\;;tte;;J 000317-0119Y. In the narrative sectionqf
t;his rep.ott, 1I91dm;;t!lstated th.<lt j'C;OlWUahcier E. PriItl wa$ on sO$!!.e
and was ma.deaw<lre of tn.$ ;;tboVe sitilatipn" (GX 1.3, B;ateil QOQ319).
Holdman's report indicates that two Department $ul.lerib;c offiQers
were aware of this inident bet.ween tbe Griev.ant and_
(Iloldman and Prim). In spite .0fthis.;'Lwareness, th<> n<>partment
did not conduct any investi$ation into this tise .offQrGe
incident, thereby sending a signal to the Grieyaht th;;tt hiS\1Se
of force against _ was acceptable to the Departrn<>ht.
Additionally, the Grievant received a :positive p<>rforrn1'\nce
evaluation in April 2010 (UX 3), which Chief Kushner testified
sent the Grievant a signal that he W1'\S doing a good job (Ir. 483-
4?6)
1'he Grievant's inoident with __ occurred in
A\1gust 12bl0. By the time the Grievant used force against_
on./l.\lgullt 12, 2010, heh1'\d previously used force against_
q.nd _"elf'cted I(lembers of the command staff were aware o
the _ i,ind_ use of force indidents, and the Department
toox noaation to inv",stigate these incidents. Further., the
Grievant JCeceived ;;t positive performance evaluation in April 2010
(PX 3), wh.ich ,'lent: tbe G:devant a signal that he was doing a good
job. ACd(jrdingl)l; the Grievant had reason to believe that his
use of force ag1'\inst _ on Al.1g\1St. 12, 2(l1d wouid not be
penalized by the n",partmep.t.
60
Cl:li!';t l;Cll$l:lner 1:1a.s beell ChiJ;l;E of pollce :tn the city since
September 4, .2012 (Tr, li<?W,>S not ernP10yect .py the city
ctllr:l,ng tl1l$tirnes wMnt\)gGr-ievi'!pt t s lISe Of forceinidents
bp(j)1tt<?q. As noteq abOVe, he t<lsj:ifiE)(;l tMtthe OepattmE)nt:
tol<;)tl>t:E)d the Gr:Ll3vatit's dbtidU'0tin t1;1at, afterea,cVJh of the
GJ;'ievClpt' $. USe Of fqtoe inoigents, theGrievantreoeived a
positivE) pl3:tforroarlc;!e ev"l)1atiol).(1:.:to
As this i.11dicates, tM lJepa:t'tmE>l1t OommilPd st.a,f;E kheVi' "bollt
the ctie\Tqiit'" Ul.ll3 ot foroe inOiCletits w:ith. _i _, aJ;jd
_ a,hP the lJepCirtmetit cqrn)(lanctsti1tfiUci nqt investigCit('liihY
qe( tMM incidents,qid hOt is:sve aDYdi"dPline to t1:1", GtieV"ht
"S .a rE).sl.)lt ot t):i('l,,6 inGiciMts, anei isslled him pd$itive annw'i.l
Pl3rform"nce evaluations after these incidE)l).ts (U'&s2, 3).
Ih sum, apolioe officE)r's ]'(se of foree ag,,:inst a l1il.tidcuffl3d
prisoner who is offe:dng no resistanoe (_) is highly
unacoept"ble beha,v:ibr. HOWeVer, the Departmeht cQmIn&nei staft's
toleration of the Gtievant' s use offordeprior t\O h:is enoounter
w:ith _sent the Grievant.a message t11,at 11,is use Of foree.
would not be penalized. As a lOesult,the Department command
staff is partly at fault tor the Grievant's m:ioSconeiuct.
The Ci,ty responds to the Un10n"s City 'Condonation contention
with vigorous denials (e.Br. The C:ity notes that Uhion
w:itness farmer Commander Wil1i"m Prim, who w.as the Gr:ievant! s
supervisor prior to the Gr:ievant's termin,ation (Tr. 547),
test;lf:ied that he never condoned the use af 'unnecessary force
against .arrestees, that he never rewarded an officer for the use
of unneoessary torce, that he never rewarded the Grievant tor the
61
]1Bl3 o.f fp:t;C$,;;tPct thi'!.t he n$ver g;'lve th",G:t;i$Va.nt a positive
$valu/'itiop ;;til a tn$Ss;;tge t9 conCiot"", tM use of
unn13Qes$,,:(y forde iTt .5(j\Hl63). Fotnier Qity MaPa.ger Slpwili,i?k:i
t"'stifi",<l that tMCity pWe);c(jngpn.,4 the us", ofei;l"'ssive tore",
;;tgai))st ;jtr.re);ltel"ls wl1il., h", wililQitYMa,n".\Jst err. 441). SicMinllld
,,1130 te.sti'Eiect that Chief ,Pr;;t))(iini could hot <1\lthorize the
Gri",vaht to us'" ",,,o,,,r;;sive foro,'" against a.r:r;el'lt",er;; err. 441).
TM City' sinsi$teno'" that itli,,,,ve);QQri(iOh',,,d polio",
offioera' use of e"c.eMd v'" forolil ;;tgaihstarre$t.,eB oertainly !hay
be true, partioularly if thilt oont",ntioh i$focused oheity
managem",nt offioials above thep",partm.,nt 1",vl31 (City Manager,
Mayor, City Counoil, l3to.). HoweVl3r, the City's dl3Pi,,-l's O;;tnnot
hide thl3 faot that during soml3 menibl3rs of the
Department command staff were aware of the Grievant's use of
fore'" against. three arrestees _ and _) and
did nothing about it. I note that the Departml3nt Gommand staff
is part of the management of the City. The PolioeChief reports
to thl3 iJity Manager (Tr, 440-441). I take judicial notice that
the Departlllent is arguably one Df the Oity'B most important
ac:ll1lil)i;strative l,mits. donsistent with decades of arb:itral
jurisprudence, 1 find that the City cannot immunize itself from
r.espon13ib:ility for the Grievant's actions by claiming that City
man$.gement (lfficialsin dity Hall had not been informed about the
Grievant's u$eof fQrce prior to August 9, 2011. Top-level City
offipials may wel.l have been unaware of the Griev;;tnt' s misconduct
prior to that delte, Put executi:ves' lack 'of awareness
does not allow the dity to escape responsibility fortM
occurred pti6t to th<it date .
Tl1$ fetc1; t114tthe Depp.rtment l\:U<;>Wp.9out, and tOlerqtec\, the
Griey"l1t's uS.e bf force ilgainf>t atre$tees )ue<tns tl],attl1e Qity is
pattJ.y "t :Eqult ot tM Qr.i<;iv4nt "13' ini:ippropriil-te b$h<tyiqr.
Accordingly, Um City's toler<tnce QI his iUiilcor\(iuct oohl.ltitutes a
second ou'" pr6cesscPIlsideratidiI that p:teVmts the Grievant's
Asa res.ult of the City's iintimelY investigatiQIl illto the
GrieyaIlt' smisconduct and the Department's tolerance. of the
Grievant'smi'Sconduct, I find that the City did not have just
cause to discharge the Grievant in Mar.ch 2012.
At the same time, I also find that the City had just cause
to issue lesser discipline to the ,Grievant. As noted earlier in
this .AWard,the evidenoe shows that the Grievant used f:oroein a
highly inappropriate manner that was directly in violation of
D<:>partment policy, ,and then railed to report his use of force,
also in violation of Department policy. The evidence also shows
that, dUriWf the City' $ November 2011 interrogation of the
C3J';ievant, the Gd,.evallt p;cesented an untruthful explanation for
h;l..s. actions asgtiMit __ on August 12, 2010, which also
cleariy "iolq1;ed Department pOlicy. The two due process
shortcomings identified above prevent th.e City's termination for
Peing ;Eor just cau(le. Howeverl the,se procedural shor.tcomings do
no\: e ~ o n e r a t e theG:t;ievant and his (leriQus misCQnduct.
A90tdingly,significqnt dil;lpipline of the Grievallt iSp],early
warraht(;li;l, ahd this i;lisciplin() Should be more substantial than
tM. disoipline applied to O:E:Eicer contreras fOr his part in, the
_ inpidentand thei;'Mfter (OX 15).
ll.S t11,1':;; inqitiiites, thi:;; grievaniJe is s.Mtaitled iil J;>iii't no::!
qenieq inp.iii;'t. I t:Lnd tht thEi :l;oJ,iawing constitute:, the
approprite rewe<'ly iv tb,is matter:
63.
(1) The Qity will reihstiite t.he Grievant taa full-tim""
piiictpoliqo;j officer pp:;;ition in the. PEipiiJ;tmMt no :Latei' t.Mn .June
3i 201-3;
('2) the Grievaut will-not pe proviq$ct with any baokpay or
be.nefits nor will he aooumUlate any :;;enibrity foi' hiE; timeawa,/
from w.ork;
(3) the G.:ttie\rant' stime away friJm work will be teo.brdedasa
ctisoiplinary suspension;
(4) the Grievant's reinstatement in this matter is on a
"last chanoe" basis for similar misoonduot during the last ohanoe
period, with !'simil.ar misoonduot" to mean any violation of the
dity's use/reporting of foroe polioy in General Order 10.01 or
any violation of the truthfulness requirement expressed in Rule
390 .50, with this last chance period to be in effect f.o17 a period
of three (3) years from the date of the Grievant's reinstatement;
any similar misconduct by the Grievant during this last ohanoe
period will entitle the City to immediately disohargethe
Grievant, and if suoh disohar.ge is appealed to .arbitration I will
serve as the Arbitrator; and
(5) at the City1sdisoretion, t.he City may provide the
Grievant with a reasonable amount and type of training in the
64
appropriate use of force, with such training to be at the City's
expense.
I will retain jurisdiction for the limited purpose of
resolving any remedy implementation disputes, including any
disputes about the applicability of the last
chance requirement to the Grievant during the period
it is in effect.
65
AWARD.
For the reasons expressed above, I find that the City did
not have just cause to terminate Grievant John Bueno in March
2012, but the City did have just cause to discipline him. In
other words, this grievance is sustained in part and denied in
part. The appropriate remedy is for the City to reinstate the
Grievant to a police officer position in the Department no later
than June 3, 2013, according to the remedy provisions specified
in the immediately preceding pages.
I retain jurisdiction for the limited purpose of resolving
any remedy implementation disputes.
Champaign, Illinois
May 3, 2013
Respectfully submitted,
Peter Feuille
Arbitrator