Federal Mediation & Conciliation Service

IN THE MATTER OF THE ARBITRATION BETWEEN:

Florida Atlantic University, Police Department (Employer)
AND
Palm Beach County PBA for William Hernandez
(Employee)
Issue: Termination of Employment of Grievant W.
Hernandez
FMCS CASE # 171011-50239-3 ______
_______________________________
APPEARANCES:
FOR: Florida Atlantic University
Eric K. Gabrelle Esq., Stearns & Weaver, Miller,
Weiser,
Alhadeff & Sitterson, PA
Counsel for the University

FOR: William Hernandez, Grievant

Lawrence K. Fagan, Esq.
Staff Counsel for Palm Beach County PBA

ISSUES:
Whether the University had the required Just Cause to
terminate the grievant and it not, what shall the remedy
be?
_____________________________________________________________
WITNESSES:
The parties presented 3 witnesses to testify before the
Arbitrator.

BRIEFS:
Each party filed a timely and well crafted brief on their
respective positions for consideration by the Arbitrator.

TRANSCRIPTS:
A complete transcript and all exhibits from each party
were received, read and considered by the Arbitrator.
ARBITRATION HEARING:
The Parties have submitted their dispute over a timely filed
grievance

that they have been unable to resolve, filed by the PBA on

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behalf of the grievant concerning his termination from
employment with

the University.

The parties processed the grievance through the contractual steps

as

required, to resolve this dispute, ,but it was not resolved prior to

arbitration

The parties consistent with their CBA agreed to move the matter
to

Arbitration under the selection procedures of the Federal

Mediation &

Conciliation Service. The parties selected William J. Mc Ginnis,

Jr. as the

Arbitrator.

The Hearings were held at the Main Campus of the University in

Boca

Raton, Florida on February 17, 2017. The hearings covered all

relevant issues related to this matter with the grievant was

represented by
legal counsel and the University was represented by legal counsel
as well.

The union met and exceeded its duty of fair representation to the
grievant.

All witnesses testified under oath and both parties had ample and
sufficient

opportunity to present testimony, evidence and arguments on

behalf of their

respective positions, relevant to all aspects of this grievance. The

parties

elected to file briefs on this matter and they were timely

presented to and
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considered by the Arbitrator.

This is an appeal by the grievant alleging that the University did

not have

the Just Cause required to terminate the grievant under the

terms of

the clear language of the Collective Bargaining Agreement and

that by

terminating the grievant the University violated the contractual

rights of the

grievant.
BACKGROUND:
The University considered a series of comments and remarks
including an

alleged threat to shoot another member of the department,

decided to

terminate Officer Hernandez. The University contends that it met

and

exceded all of the requirements to that have the required Just

Cause

to terminate the grievant from employment. Additionally, the

University

based its decision on its review of the entire disciplinary history of

the

grievant.

The University reviewed the performance of the grievant over a

series

of disciplinary actions over his 18 years of service. The current

incident

involved a dispute over the canine program. The comments and

threat to

shoot a fellow officer were heard by both a Lieutenant and the

Acting Chief

of the department.
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The PBA contends that the University did not have Just Cause to
terminate
the grievant and if it failed to meet any one of the 7 tests
normally applied to

demonstrate that Just Cause did not exist, the grievant should
prevail and be

reinstated with full back pay and benefits. In considering the

matter it is

clear, that at the outset the requirement to conduct an

investigation and

that such investigation must be fair and impartial were both not
met by the

University and the grievant should on that basis alone merit

being

reinstated with restoration of all pay, benefits and emoluments

restored.

The parties have presented their positions before this Arbitrator

for a

binding determination under the language of their CBA.

The parties should be commended for the thorough, complete and

extensive presentation of the evidence, exhibits and testimony in

this

matter and the professional manner, in which they presented

their respective

cases before this Arbitrator.

POSITION OF FLORIDA ATLANTIC UNIVESITY:
The University (FAU) terminated the grievant based upon its
determination

that comments about shooting another officer, were stated

directly to the

Acting Chief and this was a serious act of misconduct and Just
Cause

requirements were met to justify the termination of the grievant.

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The University cited at least 11 transcript references to
demonstrate the

conduct of the grievant through his words, demeanor and manner

that

can be relied upon to support a finding of just cause to terminate

him

for his actions on June 14, 2016 and July 14, 2016.

The PBA notified the university that the grievant was not to be
questioned

without counsel present and that a pre-disciplinary meeting

scheduled for

August 19, 2016 would be on paper only.

A Step Grievance hearing was held on September 14, 2016. The

grievant
did not argue or present any evidence that the account of events
as offered

by the Acting Chief was in any way inaccurate nor did he

present any

argument or evidence that any investigation of the facts

presented by the

Acting Chief of Police was warranted. Based on the information

divulged

at the Step 2 hearing, the discharge as upheld.

The University notes that a separate charge of discrimination was

filed on

behalf of the grievant, Yet, this charge and the arbitration are
linked and no

further processing of this arbitration are inconsistent with

Article 6.4 (a)

and the Charge of Alleged discrimination. This arbitration appeal

must be

dismissed according to the clear language of Article 6.4 (a).

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The University argues that it abided by and observed all of the

articles in the

the PBAs reliance on Florida Statute n 112.432 is in error and

inconsistent

with the CBA.

The PBA is in error also using the Enterprise Wire case because
specific

Contractual criteria exist that can and should be used to

determine if the

termination was proper.

The grievant knew his conduct violated University rules,

happened during

the work day and it was thoroughly investigated. The termination

was

consistent with prior personnel actions and was clearly applicable

to the

seriousness of the offense and his prior disciplinary history.

The University rules, policies, procedures, etc. can and do form

the basis for

the termination of the grievant. Specifically, Regulation 5012(3)

(b) met and

exceeded all aspects of this rule urge for the termination of the
grievant. The

termination was objectively investigated and all of the aspects of

the

applicable rules, policies, regulations were met and the

termination should

be sustained and no further action should be pursued under the

charge of
discrimination should be allowed to continue.

POSITION OF THE PBCPBA:

The University has recognized the PBA as the exclusive
bargaining agent

for the grievant in the classification of police officer.The PBCPBA

has

submitted tthis grievance on behalf of the Grievant because the

grievant

believes he was improperly terminated in violation of his rights

the CBA,

and the PBA asserts that 4 Articles of the CBA are relevant to
this matter.

The Articles noted are Article 7, Article 6 Grievance Procedure,

Article 30

Management Rights and Prevailing Rights.

The grievant had completed 18 years of service with the

University and he

was terminated without Just Cause. The University violated all

Articles

that were cited by the PBA. This termination clearly is an

excessive

violation of his rights and these violations were based in part on

the fact that
the grievant was an outspoken PBA Representative. The Acting
Chief of

Police had never before disciplined the grievant. The current

discipline grew

out of a dispute over management and operation of the K-9 Patrol.

The

Police Department had 10 Chiefs or acting Chiefs over the

grievants 18

years of service. After heated discussions over the K-9 Program

with both

the Acting Lieutenant and the Acting Chief of Police the grievant
was put

on Paid Administrative leave and after one month, he was fired

on July 14,
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2016 without any internal investigation being conducted as

required under

the Just Cause Standard and the clear terms of the CBA.

The Just cause requirement is normally demonstrated by

imposition

of the 7 tests created by Arbitrator Carroll Daughtery. Those

tests are

Notice, Reasonable rules or Orders, Investigation, Fair

Investigation, Proof,
Equal Treatment and Penalty. This standard was never met by
the

University because no fair and objective investigation was ever

conducted.

An internal investigation by the department or by an outside

entity would

have sufficed but neither as conducted.

If any one of the tests is failed the just cause standard is not met
and the

personnel action of termination can not be sustained. The Chief of

Police

would have been a witness and could not have led the
investigation as he

admitted during his testimony. The Chief also admitted ne did

things

differently with this grievant during his testimony.

Further, the University never met the burden of proof that was
required

and absent a fair investigation, it can not demonstrate it met the

just cause

standard as required. The investigation was never conducted and

the

University termination of the grievant must be reversed and the

grievant
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made whole for all benefits that he lost.

DISCUSSION:
This grievance arises from allegations by the PBA on behalf of the
grievant

that the University violated the clear language of 4 Articles of the

CBA

when it terminated the grievant, even though he was an 18 year

long service

police officer.

The just/ cause standard is the highest and most difficult

standard for any

public employer to meet. The PBA pointed to the application of

the

recognized Seven Tests to ascertain if the just cause standard

has been

met by the University under the normal application of the just

cause

standard. If any one test is failed, the University is considered to

have failed

to meet the established requirements of the standard. If any

single test is

failed, the grievance is either sustained or at least modified

depending upon
the substance of the test or tests it has failed. If the grievance has
some

merit then relief as determined by the arbitrator must be

implemented by

the University. If the grievance is without merit the discipline is

sustained as

initially determined by the Employer.

Determining the merits of the grievance the Seven Tests for Just
Cause

must be utilized to insure that just cause existed to discipline the

grievant.
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If the termination was the appropriate penalty under the

just cause standards. The University argued that

the Enterprise Wire Case is not relevant because it relied on a

University

Policy 5012(3) (b) and any reliance on Enterprise Wire is

misplaced.

Numerous resources reference the 7 tests whether we look at the

broad

application of a case or the broad conceptual application of

various

examples of similar tests as shown in the authoritative reference

book
 Just Cause: The Seven Testsby Adolph Koven which denotes
numerous

Applications of the 7 tests well beyond any single case reference.

These

Applications are further supported by the long trusted How

Arbitration

Works by Elkouri & Elkouri and Remedies in Arbitration

by Marvin

Hill, Jr. & Anthony Sinicropi.

The assessment of the application of just cause was met requires

an

examination to find whether an investigation was conducted and

whether

that investigation was fair and thorough, whether you relied upon
a policy

or some other valid point or decisional reference.

Secondly, the examination concerns whether or not the

investigation was

fairly and objectively conducted. The University failed these

critical tests.
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The University never conducted an investigation as admitted by

the Acting
Chief of Police. The obligation to conduct an investigation is one of
the

most critical tests and cannot be met by the University

unilaterally deciding

that a particular policy is controlling, particularly when the

Acting Chief of

is a direct participant in the argument that arose over the

operation of the K-

9-Police Dog Program. The Just Cause Standard requires that an

Independent investigative inquiry occur and the employer has the

burden of

demonstrating that the investigation was conducted. It was not

and the

University fails this test also.

Additionally, the University must show that the investigation was

both fair

and thorough. In the literature on this matter some writers

combine the

conduct of the investigation with the fair and thorough

requirements as one

test as Counsel for the PBA presented. Many other authors set
out the fair

and thorough test as a separate test.

In this matter, the University would fail the applicable tests
under either test

application. This test failure requires that the grievance be

sustained.

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AWARD
The grievance is sustained. The grievant is reinstated,
retroactive to July 14, 2016 and the grievant should be
completely made whole for all lost wages, benefits and
emoluments lost due to his termination.

Ordered this 15th Day of June, 2017.

William J. Mc Ginnis, J
William J. Mc Ginnis, Jr.
FMCS Arbitrator

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