Artibrator Overturned Sparks Police Officer’s Suspensioin

Posted on Wednesday, March 01, 2000 at 12:00PM

A Sparks, Nevada police officer, Karl Nieberlein, was suspended for 15 days without pay by the chief of police as a result of complaints from two citizens, who were involved in a ride-a-long program. The charges involved alleged comments made to them by Nieberlein which they viewed as derogatory to the police department.

The 15-day suspension without pay was appealed to the city manager. The city manager failed to respond to the appeal within the time frames set forth in the Sparks Police Protective Association’s labor agreement, which contains a “default” clause that states in pertinent part:

“In the event the city’s time frames have not been met in this procedure, the grievance shall be resolved pursuant to the remedy requested by the employee. In the event the employee fails to comply with these time frames, the grievance is waived.”

After the city manager failed to meet the time frames, Nieberlein’s representative, May Prosser-Strong, Employee Representation Services, submitted a letter to the city manager advising him of the default and requesting that the grievance be granted.

The city manager refused to grant the grievance, or to submit the matter to arbitration, until the parties met to discuss the appeal. During that meeting Prosser-Strong reaffirmed Nieberlein’s right to have the matter resolved pursuant to the requested remedy. The city manager refused to comply with the “default” language, however, he reduced the 15-day suspension to seven-days.

The seven-day suspension without pay, as well as the violation of the “default” clause, was appealed to arbitration. A hearing was held in the city of Sparks on September 1, 1999, before Arbitrator Fredric R. Horowitz, esq.

During the hearing, the city asserted that Prosser-Strong consented to an extension of the time frames when she offered, in a letter to the city manager, to send for a list of arbitrators.

The arbitrator found no waiver of rights in that letter, which plainly stated that Nieberlein wished to appeal to arbitration because there had been no response to the grievance.

The city also asserted that the time limits were waived because a grievance meeting was ultimately scheduled by the city manager, and attended by Nieberlein and his representative.

The arbitrator rejected this argument as well, finding that a waiver of time limits could not be inferred from Nieberlein’s attendance at such meeting. He commented, “parties to a collective bargaining agreement are encouraged to meet in an effort to resolve their differences short of arbitration, while preserving their procedural issues for determination in arbitration, if necessary.” He further noted that Prosser-Strong had asserted that the response by the city manager was ultimately made during the grievance meeting, and that the city manager had neither requested nor received permission from Nieberlein or from his representative to extend the time limits.

As a result of all of the evidence presented at the hearing, and arguments provided in post hearing briefs Arbitrator Horowitz found:

There was not just cause to suspend Nieberlein for seven days.

For remedy, the city shall rescind the seven-day suspension and restore to Nieberlein the back pay, including shift differential lost as a result of the suspension.

The arbitrator thus affirmed the validity of the “default” clause, finding that the language was clear and the city manager had failed to respond to Nieberlein in the prescribed time limits. The arbitrator also found that the city failed to contact Nieberlein or his representative to secure an extension of the grievance time limits.

As a result of the arbitrator’s findings with respect to the threshold “default” clause issue, he did not explore the merits of the city’s action with regard to the discipline.

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