Before the Arbitrator Nancy D. Powers In the Matter of: Metropolitan Council March 3, 2017 And Teamsters Local 320 BMS 16-PA-0581 Noah LaBathe

Appearances

For the Union: Paula R Johnston General Counsel Teamsters Local 320 3001 University Ave. S.E. Minneapolis, MN 55445 For the Employer: Susan K Hansen Madden, Galanter, Hansen, LLP SHansen@mgh-lawfirm.com

Statement of Jurisdiction

Noah LaBathe was a patrol officer with the Metro Transit Police

Department. He was terminated from his employment with the

Department on August 25, 2015. He timely filed a grievance. The

grievance was processed to arbitration. The undersigned was selected

from a list of arbitrators provided by the Minnesota Bureau of Mediation

Services. A hearing was conducted on September 8 and October 10,

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2016 Both parties had an opportunity to present evidence and

arguments in support of their respective positions. Post-hearing briefs

were filed on December 20, 2016 and the record was closed

Statement of the Issue

The issue for determination is whether the Employer had just cause

to terminate Grievant Noah LaBathe? If not, what is the proper remedy?

Relevant Contract and Policy Provisions

Article 10- Discipline

Section 10.01 – Forms of Discipline The Employer will discipline employees for just cause only. Discipline will be in one of the following forms: … e) Discharge.

MTPD Policy 314 Vehicle Pursuits

314.4.3a … Immediately notifying the dispatcher of entry into the pursuit.

MTPD Policy 340 Conduct

… 340.2 Conduct Policy The continued employment of every employee of this department shall be based on conduct that reasonably conforms to the guidelines set forth herein. Failure of any employee to meet the guidelines set forth in this policy, whether on or off-duty, may be cause for disciplinary action… …

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340.3 Conduct That May Result in Discipline … Any of the following actions may be deemed sufficient cause for the discipline, discharge, suspension, demotion or removal of any employee: … 340.3.5 Performance … (e) Disobedience or insubordination to constituted authorities, including refusal or deliberate failure to carry out or follow lawful directive and orders from any supervisor or person in a position of authority. … (h) The falsification of any work-related records, the making of misleading entries or statements with the intent to deceive … …

Statement of Facts

Grievant Noah LaBathe (hereafter Grievant) has been employed as

a patrol officer for the Metropolitan Transit Police Department (MTPD)

since June 24, 2014. His initial assignment was the night shift at the East

Command of the Metropolitan Transit Authority . In April of 2014 he

moved to the mid-shift after the Counter Terrorism Unit was disbanded.

Grievant worked with several officers on the shift. He had difficulties

with one officer whom he felt he couldn’t trust, and had been warned by

other officers not to trust. He complained to his Supervisor Pete Peterson

in May of 2015. However, he continued to be assigned to work with the

same officer on occasion. Grievant claimed he felt he could “hold out”

until July 2015, when he could bid and get another partner.

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On June 21, 2015, LaBathe started his shift at 2 pm, he was riding in

the passenger seat of his squad car, his partner was driving. Neither

LaBathe nor his partner signed on or turned the microphone on at the

beginning of the shift, as is required. According to LaBathe, the two went

from the Midway headquarters to the Holiday Station at Rice and Penn in

St. Paul, to pick up snacks, then proceeded to the Downtowner car wash

off 7th street in downtown St. Paul. Because he was the passenger,

LaBathe was in charge of the Daily Log, which was on a clipboard on the

dash of the squad car. LaBathe signed the log before it was filled in for

the activities of the shift. He entered “roll call” and “supplies” into the log.

“Supplies” was listed at 14:45-15:00.

While at the car wash, a call came over the radio initiated by the St.

Paul Police Department on their band, which LaBathe and his partner

could hear. A man had pulled a weapon on a security guard (an off-duty

St. Paul officer) at a Walmart on University Avenue in St. Paul and left in a

vehicle.

St. Paul Police did not request the assistance of the two, but they

decided to respond to the call anyway. LaBathe claimed he asked his

partner if he should call in to his supervisor, and his partner said no. MTPD

policy requires officers to seek permission and report in when joining a call

from SPPD.

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When the officers began the response at 14:53 pm, their squad

video turned on automatically, because their lights and siren were turned

on. The video was activated for 11:23 minutes, while the siren and flashers

were functioning.

LaBathe’s partner drove at a very high rate of speed through

downtown St. Paul and onto Interstate 94, where his speed was recorded

at 101 mph at times. He narrowly missed a motorcyclist on the freeway,

and narrowly missed a pedestrian as he drove over a curb as he left the

freeway on Hamline Avenue. The chase continued at very high speed

through a construction zone, busy intersections and residential streets of

St. Paul, coming to an end in an alley, where several SPPD vehicles and

officers had cornered the suspect.

At one point Grievant unlocked and unracked the rifle in the squad

and loaded it. He called on the radio to SPPD that he “had a weapon if it

was needed. “ He did not call the Transit Communication Center or inform

the SPPD he was engaged in the pursuit. As the officers arrived at the

scene of the conclusion of the chase, Grievant jumped out of the vehicle,

weapon in hand. A message came over the radio from MTPD TCC

dispatch that SPPD did not need assistance because the perpetrator had

been caught.

LaBathe and his partner returned to the squad. He could be heard

on the squad audio saying he wanted to have a talk with his partner, and

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the audio was turned off. Grievant claimed he wanted to talk to his

partner in private about his reckless and dangerous driving. His partner

claimed Grievant wanted to congratulate him on his exemplary driving in

the chase.

Without any conversation with their supervisor or dispatch, the two

then went to their assigned post at Target Field Transit Station to perform

fare checks, their regular duty. The two completed their shift without

further incident and filed the Daily Log, signed by LaBathe at the end of

their shift.

In his interview with Internal Affairs Investigator Mario Ruberto,

LaBathe claimed he got the SPPD case number over the radio on his way

to Target Field, and wrote it on his hand. He also claimed in his interview,

that he only filled in the preliminary items on the daily log and signed it at

the beginning of the shift when they were at the Holiday Station getting

snacks. He filled in the squad number, mileage, break time and

beginning of shift, but the remainder of the log was filled in by his partner

after they finished their shift. LaBathe claimed he believed his partner was

going to put the pursuit on the log when he completed it.

In his interview, LaBathe claimed that “we” documented the squad

video by putting the case number in the video. Neither officer could

document the video because they were not signed in, as required.

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At the arbitration hearing, LaBathe claimed he got the SPPD case

number after they went to Target Field and had spoken mistakenly in the

internal affairs interview. According to LaBathe, after the two made their

“money run”, he realized they didn’t have the pursuit on the log. LaBathe

said, “Let’s redo it”. According to LaBathe, he didn’t have a MTPD case

number because the pursuit was not called out to MTPD, when a case

number would have been assigned. LaBathe claimed they were not

trying to hide the chase. According to LaBathe, his partner agreed to

redo the log and put the pursuit on it. LaBathe did not see or sign the

redone log, nor check to see that his partner had.

The Daily Log submitted for the day contained 4 entries by LaBathe.

Rolll Call, Supplies, Twins Detail (15:50-17:00) and Money Run (17:00- 17:25).

LaBathe testified that his partner filled in the remainder of the log and

signed it. The handwriting appears to be that of his partner, whose

signature appears on the log. There are 10 further entries, none of which

mention the pursuit.

On June 29, 2015 the two officers were assigned to go directly to

the East Bank of the U at roll call. LaBathe had been warned by his

supervisor Peterson to proceed immediately to his assignment, and not go

to the Holiday station first, because he had previously observed LaBathe

and another partner driving east to downtown St. Paul before driving to

their assignment west of the Transit office at the UofM. Sergeant Peterson

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strongly admonished LaBathe to not repeat this practice again.

LaBathe’s partner told him he wanted to get treats at the Holiday

station anyway, purposely ignoring his supervisor’s order. LaBathe drove

to the Holiday station ignoring his supervisor’s order. On their way to the

Holiday, LaBathe’s partner got an email from Officer Ruberto informing

him of his internal affairs interview about the June 21 incident. The two

passed Peterson on the freeway. LaBathe’s partner decided he wanted

to take a sick day, so LaBathe drove him to the Transit Authority office.

The day of the pursuit, about 30 minutes after the pursuit ended,

another MTPD officer had heard LaBathe’s call to the SPPD about the rifle.

He reported to Peterson that he and other officers had heard the

transmission and felt there had been a pursuit that was not reported to

the on-duty Sergeant. Peterson filled out a Personnel Complaint about

the pursuit the same day.

The next day after Peterson saw LaBathe and his partner ignoring his

order on June 29, 2015, he spoke to LaBathe after roll call noting that he

had disobeyed his order to go directly to the UofM campus.

Sergeant Mario Ruberto of Internal Affairs was assigned by Chief

Harrington to conduct an internal affairs investigation of the complaint

filed by Peterson. He interviewed LaBathe on July 7, 2015 and his partner

on the 15th. Both Officers had Union representation. Ruberto reviewed

the squad audio and video of the pursuit. He obtained surveillance video

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from the holiday station . He reviewed officers logs, before he interviewed

the two officers.

Officer Ruberto found the squad video was activated for 11:23

minutes. The video showed the route through downtown St. Paul, along

Interstate 94, then through a construction zone and residential streets and

an alley, following numerous SPPD squads at speeds up to 101 MPH.

LaBathe can be heard unlocking, taking his rifle from the rack in the

vehicle, and loading it as the pursuit unfolds. The video shows LaBathe

down the alley with his rifle in arms. The video is then manually turned off

by one of the officers. LaBathe can be heard saying “Let’s ah have a

talk”.

Ruberto heard no requests for assistance from the MTPD on the

SPPD audio. LaBathe never radioed that they were in the pursuit.

LaBathe did radio to SPPD “Transit 253 we have a rifle in the back squad

here if you’re interested.” There was no audio contact with the Metro

Traffic Control Center. MTCC did transmit to all vehicles that SPPD did not

need their assistance at the end of the chase.

LaBathe and his partner’s Daily Patrol Activity Log sheet had

nothing entered to document the pursuit. The log documents the officers

getting supplies at the Holiday Station at Rice and Penn when the pursuit

actually occurred. Both officers signed the log attesting to its accuracy.

There were no other reports filed by either officer about the pursuit.

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Ruberto cited two other incidents which he believed demonstrated

a pattern of insubordination involving both officers. The two officers were

pursuing a suspect who ran from a transit stop on foot about 8:30 pm on

May 24, 2015. Sergeant Peterson made three requests over the radio for

the officers to tell him the reason they were pursuing the suspect. After

the third request, LaBathe’s partner said “If you want to come help, help!

We’re lookin for him”. MTPD policy requires the duty Sergeant to monitor

any foot or vehicle pursuit, to determine when and if it should continue.

The second incident cited by Ruberto was the officers disobeying

Peterson when he ordered them to go immediately to the Twins transit

stop, because a game was just ending on June 29, 2015.

In his interview with Ruberto, LaBathe admitted he failed to report

the pursuit to MTCC. He said he asked his partner if he should, and he

said no. LaBathe said he filled out the break time and the roll call at the

same time. Then they went to the Holiday and the Downtowner. He said

he intended to include the carwash on the log. He stated he didn’t touch

the log again until after they left Target Field, when he failed to put it on

the log.

LaBathe claimed his partner took over the log and filled it out

toward the end of the day. LaBathe said that at the end of the day when

he was writing reports for the day, he issued his partner the SPPD case

number for the chase. He said he believed his partner was going to put it

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on the log and that he was going to redo it. LaBathe claimed he heard

the SPPD case number come over the radio while they were in route to

Target Field, and had written it on his hand.

In his recommendation, Ruberto found both officers violated the

vehicle pursuit policy (MTPD 314.4.3a), two code of conduct policies

(MTPD 340.3.2(a) and 340.3.5(e) for failing to perform duties and

insubordination. Finally, Ruberto found a violation of MTP Policy 340.3.5(h)

for “falsification or any work-related records, the making of misleading

entries or statements with the intent to deceive or the willful and

authorized removal, alteration, destruction and /or mutilation of any

Department record, public record, book, paper document.” Ruberto

sustained all the policy violation allegations concerning LaBathe and his

partner.

When he received Ruberto’s report, Chief John Harrington sustained

the findings of policy violations cited by Ruberto. In a letter dated August

24, 2015, Harrington informed LaBathe he was being terminated as a

result. He was placed on administrative leave pending a 5-day

suspension without pay beginning on August 29, 2015. His termination was

effective September 2, 2015. LaBathe timely grieved the termination.

Positions of the Parties The Union

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The Union contends the Employer did not have just cause to

terminate Grievant LaBathe. He was accused of serious acts of

dishonesty which could end his career, thus a higher quantum of proof

should be required to uphold the termination. A standard of “clear and

convincing evidence” should be the standard required.

The Union argues LaBathe’s work history doesn’t support the

Employer’s claim that he was a bad officer. He was a first year officer

who made mistakes and learned on the job. He had no formal discipline

prior to his termination.

While the Employer claimed that Grievant’s counseling log was

created because Captain Franklin “started hearing things about him”,

there were no specifics cited to justify this. Franklin said LaBathe was

transferred to a different shift to provide him with more supervision. In

fact, LaBathe was “bumped” into the B-Mid Shift-East Command when a

unit was disbanded. He worked there under the supervision of Sergeant

Peterson until his termination.

The Union argues the counselings Grievant received were

exaggerated by Franklin. Grievant received as much positive feedback

as negative. Grievant made some errors, but none were severe enough

to warrant discipline.

The Union claims to “use of force” reports are not probative of

anything relevant to the charges against LaBathe and are misleading.

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Grievant received an Award of Merit in April of 2015. Grievant

stopped two adult males who were attempting to sexually assault a minor.

Grievant did not “demonstrate time and time again that he would not

comply with MTPD policies and procedures as claimed by the Employer.

The Union argues Grievant did not falsify the log sheet. The policy

governing work-related records (MTPD Policy 340.3.5(h)) requires the

Employer to prove LaBathe had an “intent to deceive” in this case – it

merely assumed LaBathe was guilty.

The Union states that LaBathe’s partner decided he would drive on

June 21, 2015. Grievant began the log at the start of his shift, but didn’t

finish it. He signed his name and shift start time. The Employer claims that

Grievant meant to falsify the log sheet to cover his failure to report the

pursuit to dispatch or his supervisor. Grievant did not intend to fail to

report the pursuit. He radioed the SPPD that his squad car had a rifle if it

was needed. He knew anyone could hear his call. In fact, another officer

heard the transmission and later notified the officer’s supervisor of the

pursuit. He did not falsify the log sheet, as he didn’t complete it – his

partner did. He believed his partner would redo the log and include the

pursuit.

The Union argues Grievant did not intend to cover up the pursuit.

When he and his partner turned off the audio in the squad after the

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conclusion of the pursuit, it defies logic that they discussed how to cover it

up. There is no evidence of collusion between the two officers.

The Union contends that a Brady/Giglio impairment does not

automatically constitute just cause for termination. The Employer must

prove independently of a Brady determination, that just cause exists for

termination of the employee.

Grievant has admitted not notifying dispatch or his supervisor about

the pursuit, and that he was insubordinate when he took his partner to the

Holiday station in violation of orders. The Union argues these offenses are

not severe enough to warrant discharge.

The Department could have terminated LaBathe before the end of

his one year probation without just cause when Peterson submitted his

complaint. It failed to do so, keeping LaBathe on for another two months

during which he participated in an arrest which resulting in Captain

LaVinet recommending his for a medal of commendation.

The Union argues Grievant’s work record does not support

termination for these admitted rule violations. The Employer did not prove

intent to falsify the log. Grievant is a good cop who has shown remorse

for the infrations. He deserves another chance to prove himself. He

should be reinstated with back pay and benefits.

The Employer

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The MTA contends it had just cause to terminate Grievant. LaBathe

had knowledge of MTPD policy. Minnesota law requires police

departments to establish pursuit policies. The policy adopted by the MTPD

(Pursuit Policy 314.5) directs officers, among other things, to not become

involved with a pursuit unless directed by a supervisor. MTPD Policy 340

prohibits officers from falsifying any work-related records or making

misleading entries with the intent to deceive. The Policy also prohibits

insubordination including refusal or deliberate failure to carry out a lawful

directive and order from a supervisor. Grievant admitted his knowledge of

and obligation to comply with department policies.

The Employer contends a fair and thorough investigation was

conducted and established the Grievant engaged in the conduct for

which he was terminated. Sergeant Ruberto, the Internal Affairs

investigator conducted a thorough investigation. Grievant did not claim

that the investigation was unfair. LaBathe admitted he engaged in

multiple violations of Department policy including the Pursuit Policy,

falsifying the Police Activity Log and failing to follow his Sergeant’s orders.

The Employer has proved Grievant engaged in the conduct for which he

was terminated.

The MTPD contends Grievants inconsistency between his Garrity

statement and his arbitration testimony negatively affect his credibility.

Under Garrity, Grievant claimed he heard the St. Paul Police case number

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over the radio in the squad car on his way to Target field, and wrote it on

his hand. At the hearing, Grievant claimed he did not hear the case

number as he was riding to Target field.

The Employer argues that termination is the appropriate remedy.

Grievant was a short-term employee with many coachings during his

probationary period.

Grievant destroyed his credibility because of his falsification of the

Daily Activity Log and his failing to report participation in the pursuit. La

Bathe demonstrated an intent to conceal his misconduct. The Ramsey

County Attorney’s Office determined this conduct created an issue which

undermined his credibility as a witness under Giglio v United States, 405

U.S. 150 (1972).

The Employer contends there are no mitigating circumstance which

would undermine upholding Grievant’s termination. No other MTPD

officers are similarly situated to Grievant. One officer who falsified his

Patrol Activity Log, had only the one incident and a very long record as

an excellent officer.

The Employer argues LaBathe cannot claim his partner in the pursuit

is responsible for the infractions. He admitted he had been warned not to

trust his partner. Yet, he claims his partner redid the Patrol Activity Log

leaving out the pursuit. His partner had no authority to order LaBathe to

do anything.

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The Employer argues that, contrary to the Union’s contention,

Grievant did not demonstrate extremely good behavior and performance

after the June 21, 2015 incident. His use of force incidents is inconsistent

with this contention.

Finally, the Employer contends its judgment of the appropriate

remedy should not be overturned unless it was arbitrary, capricious or

discriminatory. The MTPD fairly investigated the matter, proved the

Grievant committed the alleged conduct and assessed the proper

penalty.

Discussion and Conclusions The issue for determination is whether the Employer had just cause

to terminate Grievant. The Union contends that the “clear and

convincing” standard of proof is required in this case. I disagree.

Preponderance of the evidence is the more appropriate standard.

The Employer conducted a fair investigation of the incidents

leading to the termination. Both LaBathe and his partner were given

Garrity warnings and interviewed in the presence of Union representation.

An Internal Investigation was conducted with review of all relevant

documents and video.

Grievant has admitted to the policy violations found by the

Employer and sustained in the Internal Affairs investigation, but denies

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having any “intent to deceive” when he submitted the Daily Log Sheet

with his signature, which omits any mention of the pursuit.

Grievant has admitted he began filling out the log sheet, but denies

completing it. It is apparent from looking at the log sheet, that someone

other than LaBathe completed it.

His partner admitted “possibly” filling out the remainder of the log

sheet, but denied knowing or noticing what was actually on the sheet, or

having any discussion about the pursuit and whether it should be on the

log, with Grievant.

In his Garrity interview, LaBathe claimed he obtained the case

number when the SPPD called it over the air on their way to Target field

and wrote the case number on his hand. He filled in two entries for Target

Field, ending at 5:25 pm, before he turned the log over to his partner at

the end of the shift, but failed to include the pursuit. In his arbitration

testimony LaBathe said he obtained the SPPD case number after they left

Target Field. He said he remembered he didn’t put the pursuit on the log

when he was at Target field.

LaBathe claims he and his partner entered a memo into the video

of the pursuit at the end of the pursuit. There was no memo entered. It

was not possible to enter it, as neither Officer had signed into the video.

In admitting he violated MTPD policies, at the same time, LaBathe

tried to pass responsibility for initiating the pursuit, reporting the pursuit to

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MTPD and failing to enter the pursuit into the Daily Log as all decisions that

were made by his partner. This was in spite of the fact that LaBathe was

the passenger in the squad that day, the person who typically handles the

radio and other tasks not related to driving.

LaBathe had every opportunity to call in to report the two were

participating in the SPPD pursuit. He called in to the SPPD to report he

had a weapon, but couldn’t report the pursuit to his supervisor. He made

entries into the log for events that occurred after the pursuit, and yet did

not record the pursuit.

He claimed he and his partner discussed redoing the log report so

that it would accurately reflect the pursuit. His partner did not confirm this

was what happened. His partner suffered from almost total amnesia

about the whole incident and claimed it was such an insignificant event

that it wasn’t even important enough to record or fill out a report for.

LaBathe made no follow-up to verify his partner filed a revised

report. He was there at the end of the shift, “filling out paperwork” and

could have made certain the “corrections” were made. He did not sign

any revised report, nor even sign a blank report.

Grievant’s credibility was undermined by his testimony that he had

the SPPD case number before Target field and that the officers had

entered a memo into the video of the chase. He had every opportunity

to inform his department about the pursuit, but failed to do so and pushed

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responsibility for documenting it off on his partner, whom he admittedly

disliked and didn’t trust. I find that Grievant intended to hide his

participation in the pursuit, and intended that the log be filed without

entering the pursuit.

LaBathe testified that he did not trust his partner, and had been told

by other officers to not trust him. He claimed that he was just going along

with his partner to “bide his time” until he could bid for an assignment that

would take him away from a partner he did not like or trust. Considering

LaBathe’s feelings about his partner, I find it incredible that he would have

relied on him to file a proper accurate report.

LaBathe also blamed his partner for the facts underlying the

insubordination allegations. LaBathe implied that his partner was in

charge of decisions because he had one more year of seniority.

Testimony was clear that the senior officer can only occasionally

determine who will drive the squad and where the officers might go for

lunch. LaBathe knew Peterson had specifically told him NOT to go east

before reporting to his assignment. He intentionally failed to follow orders.

The Union made numerous arguments to support its claim that there

was no intent to deceive on LaBathe’s part. I do not find them persuasive.

The Union argued that LaBathe was a new, good officer who made a few

mistakes and should be given another chance. These arguments cannot

negate what were serious violations of policies and procedures. The fact

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that LaBathe could have been terminated before the end of his

probationary period without cause is not relevant to his termination. The

investigation had not been completed when his anniversary date passed.

Finally, the Employer argued that Grievant’s designation by Chief

Harrington and the Ramsey County Attorney that he was “Brady

impaired” was just cause for termination. I do not find this to be the case.

Just cause must be determined independently of any determination of

Brady impairment. The contract requires such a determination. I make

that determination here.

The Union argues that LaBathe’s admissions of insubordination are

not severe enough to warrant discharge.

I agree with the Union that the two incidents of insubordination

alone, do not call for discharge. However, looking at the entire record, I

find there is just cause for termination because LaBathe has demonstrated

he is unable and unwilling to follow department policies and orders and is

willing to take steps to conceal his serious violations of such policies and

orders. The unreported pursuit was a completely uncalled-for,

unrequested pursuit across a congested, busy city taken in violation of

reasonable policies which are in place to protect the officers and the

public from dangerous, unnecessary exposers to risks and to maintain a

chain of command to manage and review actions taken by officers. The

Officers then took steps to conceal their participation to avoid taking

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responsibility for it, and escape any disciplinary consequences for what

they knew was a completely wrong action.

I do not find any mitigating circumstances which would argue to

reduce the penalty. Grievant was a fairly new officer. He had been

coached about his performance on numerous occasions to help him

mature into a good police officer. He was not disciplined for any of the

circumstances reflected in the coachings. Management believed

LaBathe had transgressed department policy in a shocking manner and

that termination was the appropriate discipline. I find no reason to upset

that judgment.

Award

The grievance is denied.

Nancy D. Powers, Arbitrator