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Airport Sergeants Win EMRB Hearing and Reinstatement

Posted on Thursday, March 01, 2001 at 12:00PM
Posted by Michael Langton Sgt. Barry Roseman

The Employee-Management Relations Board of Nevada (EMRB), has overturned the terminations of two Reno/Tahoe Airport police sergeants. On January 30, 2001, the EMRB ordered Sergeants Barry Roseman (one of the authors) and Francis Fowler re-instated with back pay and benefits, including interest and attorney fees. The board also ordered the airport to negotiate in good faith with the association the sergeants formed (R/TAPSA) shortly before they were fired. Finally, the EMRB board ordered Executive Director Krys Bart to sign and post a statement acknowledging that the two sergeants had been terminated unlawfully, and that the airport would cease committing prohibitive practices against R/TAPSA.

On September 2, 1998, three sergeants with the Reno/Tahoe Airport police asked the Washoe County Airport Authority for recognition to form their own association, the Reno/Tahoe Airport Police Supervisors Association (R/TAPSA). For a month-and-a-half, airport officials did not respond to the sergeants’ request. Instead, management held a meeting with the three sergeants, asking if management could “make an offer” in lieu of the sergeants forming their association. After this meeting, newly hired Executive Director Krys Bart, asked Association President Barry Roseman if he would “hold off” forming an association until she could talk to him and “make things right.” Roseman said he would be willing to talk, but would move forward to form the association. However, thereafter Bart either canceled or was a no-show at three scheduled meetings.

Roseman then demanded to be placed on the airport board of trustee’s agenda, for the November 1998 session to formally request recognition from the trustees. At that meeting one trustee stated, “There’s a price to pay when employees choose to unionize instead of working with management.” This trustee further related that the relationship will become “adversarial,” and said in the open meeting, “I don’t think we have a choice here but to recognize them.” Another trustee expressed his concern over yet another association forming at the airport and the “unwieldy” effect this may have on the airport during negotiations and the costs of negotiating with five separate unions. He also expressed concern about why these associations were forming in the first place. Nevertheless, the board of trustees voted to recognize the sergeants’ association.

After the November 1998 recognition, Roseman requested to start negotiations immediately. A date and time was set in the request letter, however, no one from airport management responded or appeared at the time designated. The association continued to request that negotiations start, but the requests were unanswered. Eventually, a negotiating date was set in May 1999, seven months after recognition and initial demand to negotiate. Several meetings did take place, however nothing of any substance was agreed to or settled on, including a discipline procedure the AAWC had already agreed to with the police officers’ association.

Shortly after the November recognition, the third member of the association began to distance himself from the association and on December 31, 1998, slipped a typed, unsigned note under the door of the police chief. This anonymous note accused Roseman, the association president, and Fowler, the association vice-president, of cheating on their time cards. Although dated December 31, 1998, the note alleged that one sergeant cheated on his January 1st time card and the other sergeant cheated on his January 2nd and 3rd, 1999 time card. The chief, however, approved and signed both sergeants’ time cards on January 4, 1999. But in March 1999, amid the many demands for negotiations, both sergeants were notified of an internal investigation against them for alleged time card fraud for the above dates.

In March 1999, an outside agency, Nevada Division of Investigation (NDI), was assigned to investigate the complaint. As required by Nevada law, both sergeants were given notice, per NRS 289.060, (Peace Officer’s Bill of Rights), of the investigation for “mismarked time cards.” Both sergeants immediately contacted PORAC/LDF for an attorney to assist them in defense of the charge. LDF assigned Reno attorney, Michael E. Langton, the other author.

In April 1999, the NDI investigator questioned both sergeants in Langton’s presence on only “mismarked time card” issues. During one of the breaks in the interview of Roseman, the NDI investigator made the statement, “I wish someone had just asked you both some questions. This could have been cleared up in 5 minutes.”

However, in late May 1999, Roseman was unexpectedly called at home and told to report to the operations director with his badge, ID, and keys. At this meeting, Roseman and Fowler were placed on administrative leave and given a redacted copy of the investigation. Upon review of the report they discovered there were seven additional allegations listed against each of the sergeants. Neither sergeant had been informed or questioned regarding these other allegations, a clear violation of NRS 289. The previously unknown allegations included insubordination, tardiness, absence from duty (two-counts), not performing the duties of a sergeant, tracking of overtime, and embarrassing the airport. The original charge of mismarked time cards was not sustained in the investigator’s report.

A pre-termination meeting was scheduled the following Saturday, June 12, 1999. On June 10, 1999, management at the airport had been served a federal lawsuit from R/TAPSA alleging “Violation of First Amendment Rights,” the right of association, and “creating a hostile and abusive work environment” in retaliation for forming an association. At the June 12 meeting, attorney Langton informed airport management that NRS 289 had been violated and, as such, the sergeants would not participate in the improper meeting and suggested management renotice them and conduct a fair investigation as required by Nevada law.

On June 17, 1999, a registered letter was received by both sergeants terminating them effective June 15, 1999. Roseman had been with the Airport Police Department 7 ½ years with 19 ½ years in the PERS system. Fowler had five years with airport police and 12 years in PERS. Neither had been previously disciplined.

An unfair labor practice complaint was filed with the EMRB contending the discharges were pretextual and in retaliation for forming the association. In August 2000, a hearing was held where each side presented witnesses, evidence, and arguments. During the hearing Langton was able to discredit the airport’s witnesses, including the NDI investigator, and establish that the terminations had no rational basis. The hearing officers openly expressed their concerns of the lack of due process and the shoddy investigation that led to the terminations. During his testimony, the police chief admitted both sergeants were doing a good job with no prior warnings from him for anything before this incident. The chief further said that he recommended termination without asking either sergeant for their side of the story.

The NDI investigator admitted going outside the boundaries of the notification letter, per NRS 289, during his investigation. Another witness testified that the investigator told airport management that he “had” both sergeants prior to even interviewing them. Under cross-examination the investigator admitted that the other “seven allegations” came after the NRS 289 warning, with the chief alleging five complaints and another AAWC employee alleging two complaints. The investigator testified that his report was accurate and admitted if errors could be shown then his report would therefore be unfair. Langton showed the investigator many errors in his report. At the end of the investigator’s report he wrote, “There is very little, if any, documentation for either sergeant’s activity on all of the involved allegations.”

Roseman stated: “I’m thankful and appreciative that while we were forming our association, we joined PORAC and the LDF. LDF came through quickly and decisively, assigning us one of Reno’s best labor attorneys. Take it from me, if you and your association are already with PORAC/LDF, stay with them. If not, join immediately. One unplanned incident will make it worth its weight in gold. Thanks PORAC/LDF for being there when we needed help.”

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.