QCommontueaItb of :fla~5atbU5ett5 DIVISION OF LABOR RELATIONS

In the Matter of Arbitration Between:

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ARB-093-2009 (Aaron Y eo- Termination)

TOWN OF GROVELAND

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TEAMSTERS, LOCAL 170

INTRODUCTION

The Teamsters, Local 170 (hereinafter Union or Local or Grievant) timely filed a Petition

to Initiate Grievance Arbitration with the Commonwealth of Massachusetts Division of Labor

Relations (Division). Pursuant to Chapter 145 of the Acts of 2007 and 456 CMR 22.06(1), the

Division appointed the undersigned, Michael P. Boyle, to serve as a single neutral arbitrator·

authorized to hear and determine the case. At the request of the Union and by agreement of the

parties, the undersigned Arbitrator conducted a hearing at Groveland Town Hall.

Attorney Brian M. Maser, Kopelman and Paige, P.e. appeared on behalf of the Town of

Groveland (Groveland or Employer or Town). Attorney Stephen C. Pfaff, Louison, Costello,

Condon & Pfaff, LLP appeared on behalf of the Union. Following the hearing, the parties timely

submitted briefs.

THE ISSUE .

Was there just cause to terminate Aaron Yeo? Ifnot, what shall the remedy be?

THE FACTS

The Town is located in Essex County, Massachusetts and has a population of less than 10,00.0 inhabitants. The Chief Executive Officer of the Town is a three member Board of Selectmen (Board). Prior to Mr. Yeo's termination, the Town employed five full-time patrolmen within the Police Department (Department). Patrolmen are represented by the Union and their terms and conditions of employment are set out in a collective bargaining agreement.

The grievant, Aaron Yeo, was hired by the Department in September 2002 and served as a full-time patrolmen from April 2006 until his termination in May 2009. At all relevant times, Mr. Yeo was assigned to the 11:00 p.m. to 7:00 a.m. shift.

Robert J. Kirmelewicz (ChiefKirmelewicz) was appointed Chief in the summer of2008 and instituted two new policies affecting the 11:00 p.m. to 7:00 a.m. shift. First, the dispatcher was required to contact by radio patrolmen at the top of every hour and the patrolmen were to respond with "their street location at the time of the radio check." Second, patrolmen were to begin conducting "building checks" of particular structures within the jurisdiction and notify the dispatcher when they had completed each check. In December 2008, Sergeant Dwight McDonald (Sergeant McDonald) issued a memorandum clarifying the radio check procedure by requiring patrolmen to report their "reason for being in the station (break, report writing, etc.)" when they were at the station at the time contacted by the dispatcher.

In the fall of 2008, Sergeant McDonald conducted a review of patrolmen performance and concluded that Mr. Yeo was underperforming. Over the time analyzed, Mr. Yeo had worked 113 11:00 p.m. to 7:00 a.m. shifts and made 45 self-initiated stops while the other two officers assigned to the 11 :00 p.m. to 7:00 a.m. shift over thattime period respectively had worked 86 and 40 shifts while making 195 and 102 self-initiated stops. After interviewing other patrolmen,

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Sergeant McDonald came to believe that Mr. Yeo's underperformance could have been due to

spending an inordinate amount of time on Department computers.

In light of this information, the Town installed computer software in the squad room to

monitor the use of Department computers. All patrolmen were subject to the monitoring and

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Sergeant McDonald conducted "spot-checks" on all computers. Sergeant McDonald determined

that the other patrolmen were generally using Department computers within the parameters of

the Department's Computer Use Policy, but that Mr. Yeo was engaged in "excessive computer

use during his patrol shifts.") The computer tracking software was then used to produce a print-

out showing the periods of time that Mr. Yeo spent on the computer during his patrol shifts and

to generate screenshots of the sites that he visited.

Soon after installing the computer monitoring software, Sergeant McDonald began to

believe that Mr. Yeo was not accurately reporting his location while on patrol. This was based on

a review ofthe logs showing (1) that Mr. Yeo did not report being at the station house when he

was in fact there and (2) that there was an apparent discrepancy between his purported patrol

activity and the number of miles he actually traveled during his shifts.

Based on these suspicions, ChiefKinnelewicz ordered Deputy Jeffery T. Gillen (Deputy

Gillen) to conduct an internal investigation. As part of this investigation, the Department

installed a GPS tracking device into Mr. Yeo's cruiser and monitored his activity for seventeen

shifts over a one month period. Towards the end of the investigation, precipitated by GPS reports

that the cruiser would not move for extended periods of time, the Department installed a

concealed camera in Mr. Yeo's cruiser to record his activity during patrol. At the conclusion of

I The Computer Use Policy states in relevant part:

"5) The Town reserves the right to monitor, on a real-time basis, any and all traffic on the Town's network on a proactive basis to ensure appropriate content access as well as reasonable resource

utilization .. .Additionally, Town managers may direct a real-time monitoring of an individual account or machine due to suspicion of inappropriate usage;

6) Violations of any of the provisions of this policy statement may result in appropriate disciplinary action depending upon the severity and frequency of the violations, including without limitation, written warnings, termination and civil and criminal action."

the investigation, on March 31,2009, ChiefKirmelewicz and Deputy Gillen interviewed Mr. Yeo, whose union steward was also present during the interview.

On April 3, 2009, ChiefKirmelewicz informed the Board that he had suspended Mr. Yeo and requested a hearing before the Board to consider whether Mr. Yeo should be dismissed from employment. After a duly noticed hearing on May 6, 2009 the Board voted to terminate Mr. Yeo for lying on duty, excessive computer usage, sleeping while on duty, lying to Deputy Gillen and ChiefKirmelewicz during the investigatory interview and for refusing to answer questions asked during the investigation. The Union filed a timely appeal of the Board's decision.

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POSITIONS OF THE PARTIES

THE EMPLOYER

The Employer argues that there was just cause to terminate Mr. Yeo, even though he did not have a prior disciplinary record, because police officers are required to meet an especially high standard of conduct particularly with regards to honesty. The Town contends that Mr. Yeo was repeatedly dishonest and in violation of explicit work rules. The Town cites the precedent of the Civil Service Commission, state and federal courts, and an internal document to support a heightened requirement of honesty for police officers. The employer highlights the requirement of prosecutors to disclose whether an officer has been disciplined for dishonesty and argues that committing acts of dishonesty undermines the ability of a police officer to be an effective prosecution witness.

The Employer alleges that Mr. Yeo was dishonest: (1) in radio communications to dispatch while scheduled to be on patrol and (2) to direct questions asked during an internal investigation. The Employer alleges additionally that Mr. Yeo violated well-established policies

of the department by (1) personal and inappropriate use of Department computers and (2) sleeping in his cruiser while scheduled to be on patrol.

The Employer entered exhibits establishing that the location which Mr. Yeo reported to dispatch repeatedly conflicted with his location as evidenced by the GPS monitor. This included: (1) reporting his location as being at an incorrect although neighboring location; (2) giving different locations to multiple checks despite having not moved; and (3) stating that he was on the street when he was in the station house despite being aware of the memorandum requiring him to report his location as at the station house in such situations.

The Employer alleges that Mr. Yeo, despite being on notice that any dishonesty would be in violation of Department policy, was "willfully and intentionally untruthful, misleading, deceptive, and evasive" when interviewed by Chief Kirmelewicz and Deputy Gillen. Specifically, the Employer asserts that Mr. Yeo (1) lied when he stated that he honestly reported his location to dispatch, did not stay in areas where he could not be seen, did not park behind buildings and daily reviewed the Daily Logs and (2) refused to answer questions while under notice that such a refusal was in violation of Department Policy.

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The Employer asserts that the use of Department computersby Mr. Yeo was in violation of the Town's Computer Use Policy. The Town entered detailed evidence of Mr. Yeo's use of Department computers into the record. This evidence shows that each shift he generally spent over an hour using the computer for personal business such as searching for employment and housing in New Hampshire, searching for women on MySpace and watching videos on YouTube.

The Employer claims that Mr. Yeo regularly slept in his cruiser while scheduled to be on patrol. The Town entered evidence that he frequently stopped the cruiser for long periods at locations that were too secluded to allow him to see passing cars, but were ideal for sieeping.

Additionally, the Town entered video taken on the camera concealed in the cruiser which they assert shows Mr. Yeo sleeping on two shifts. Lastly, the Town highlights Mr. Yeo's refusal to answer questions regarding sleeping on shift during both the investigatory interview and the hearing before the Board.

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THE UNION

The Union argues that there was not just cause to terminate Mr. Yeo. The Union argues: (1) certain information should not be considered because it was gathered in an inappropriate manner; (2) the evidence does not show that Mr. Yeo ever slept on the job; (3) Mr. Yeo's responses to dispatch were not inappropriately misleading; (4) the patrol statistics do not demonstrate that Mr. Yeo's performance was unacceptable; and (5) to the extent that Mr. Yeo violated work rules he should be subject to progressive discipline rather than immediate termination.

The Uriion argues that the GPS device and video camera were placed into Mr. Yeo's cruiser in violation of the collective bargaining agreement and that any evidence gathered from them should not be considered. The Union states that the installations were in violation of M.G.L. c. 150E since the anticipated impact was that Mr. Yeo would be disciplined. These installations are the subject of a separate grievance.

Similarly, the Union contends that the interview conducted by Deputy Gillen was conducted in an inappropriate manner. The Union argues that pursuant to the Internal Affairs Policy Mr. Yeo had a right to written notice of for what he was being investigated since such disclosure would not have "jeopardize[d] the investigation." The Union also takes issue with the fact that the interview was conducted at 6:30 a.m., just prior to the end of Mr. Yeo's shift, and the Town's refusal to honor Mr. Yeo's request for an attorney.

The Union argues that even if the videotape is considered it does not demonstrate that Mr. Yeo slept on the job. Grievant asserts that the video is too dark to determine what Mr. Yeo is doing in the car and argues that he could not have been sleeping because he answered every call from dispatch.

The Union contends that Mr. Yeo's responses to dispatch were not inappropriately dishonest but rather appropriately covert in light of "homeland security" and other practical considerations. The Local asserts that Mr. Yeo was patrolling near "terrorist threats" in accordance with a cited Department of Homeland Security policy and reported slightly erroneous locations so that he could not be located by someone eavesdropping on a police scanner. The Union also stresses that Mr. Yeo responded with approximate locations and that the Town's witnesses conceded that no one has ever been disciplined for not giving their exact location.

The Union disputes the patrol statistics which precipitated the monitoring of Mr. Yeo.

They argue that the failure to account for two officer cruisers inaccurately reduced Mr Yeo's stop statistics. They argue that "second officers" would not be credited for stops when serving in that position and since Mr. Yeo filled that position for a disproportionate number of shifts vis a vis the other officers, it is not surprising his numbers reflect less activity. The Union highlights that Mr. Yeo missed no calls during the time period analyzed nor was he subject to discipline.

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The Local does not contest the Town's evidence regarding Mr. Yeo's computer use.

The Union argues that even if the Town's evidence is credited Mr. Yeo should be subject to progressive discipline rather than immediate termination because of his eight years of service with little discipline. The Local contends that the Town should have confronted Mr. Yeo when they first believed that he violated rules and regulations so that he could have reformed his behavior and that if discipline was necessary it should have begun with a minor suspension.

OPINION

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The grievance is denied. Mr. Yeo's consistent dishonesty and misconduct significantly breached his job duties and justified the discharge.

Police officers must be held to an especially high standard of honesty in all aspects of their job. The Employer highlights the role police officers playas prosecution witnesses. Honesty is similarly essential to their day-to-day responsibilities. A department must rely on the reports of police officers to know how to investigate crimes; dishonest police officers may lead to innocent individuals being prosecuted and crimes left unsolved. In the long run, tolerating officer dishonesty would erode the public's confidence in police departments and hamper the ability of departments to ensure public safety.

For similar reasons, police officers must be held to a particularly strict requirement to follow unambiguous directives. In order to ensure public safety, police departments must be able to rely on officers, especially those like Mr. Yeo in one person cruisers, to follow all guidelines. This is the only way that hierarchal organizations can reliably function. Given the importance of public safety, police officers must suffer serious discipline for consistently breaching even. relatively minor departmental rules.

Mr. Yeo consistently lied and violated clear guidelines.

Mr. Yeo's radio transmissions were repeatedly dishonest. The Employer entered numerous photographs and GPS evidence that demonstrated Mr. Yeo dishonestly reported his location during radio checks in order to manufacture the appearance of working. Particularly damming are his repeated reports of being on a street when in fact he was in the station. This was in violation of a clear directive. Mr. Yeo's characterization of his misrepresentations as designed

to confuse eavesdroppers is not credible. He should have informed his supervisor of this plan if that was in fact his intention. His failure to do so is damming.

Mr. Yeo breached his job duties by repeatedly parking his cruiser in concealed locations in order to rest during his shift. While the Grievant is correct that the video is not conclusive that Mr. Yeo actually fell asleep on the job, it clearly shows him in a resting position. It is not credible that Mr. Yeo was engaged in police activity, either to protect the national security or otherwise, behind the school. Given that there was no reported activity in the area and that his location was too secluded to monitor motorists, the lengths of his stops, as indicated by the GPS, are consistent with extended rest breaks. Again, ifhe was actually monitoring the school for terrorist threats he should have communicated this to his supervisor and his failure to do so is damming.

Mr. Yeo violated Department policy during his internal investigation interview. His refusals to answer questions violated the clear requirement to fully answer questions during internal investigations. Mr. Yeo's statements that he did not go to locations where he could not be seen for long stretches and that he did not misrepresent his location during radio transmissions were both dishonest.

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Mr. Yeo computer use was in gross violation of the Computer Use Policy. His use was excessive, personal and inappropriate. There is no justification, and Grievant does not offer one, for a police officer to spend over one hour each shift searching the internet for out of state housing or creatively clad women.

This pattern of dishonesty and malfeasance breached the standard which police officers must meet and justifies termination. While anyone of his violations might not warrant discharge, the pattern does since the Department could not have confidence that Mr. Yeo would follow any

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guideline. Similarly, while anyone of his lies may not justify termination, the pattern does since

the Department could not have confidence in the truthfulness of any statement by Mr. Yeo.

Mr. Yeo's termination is appropriate even though the Department did not confront him

when they first learned of his malfeasance. Employers should confront employees on minor

infractions, especially those that may have resulted from employee misunderstanding, in order to

help them reform behavior. This is not applicable in the instant situation. Mr. Yeo's infractions

were serious and could not plausibly have sprouted from a misunderstanding. The Department's

concerns that Mr. Yeo had consistently violated Department rules justified the actions they took

to monitor carefully his behavior for one month and the fruit of the investigation justified the

termination.

AWARD

The grievance is denied. The Division finds that there was just cause to terminate Mr.

Yeo.

Michael P. Boyle Arbitrator

Commonwealth of Massachusetts Division of Labor Relations Springfield State Office Building 436 Dwight Street, Room 206 Springfield, Massachusetts 01103 (phone) 413.784.1250

September 29, 20 I 0

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