AIRPORT SERGEANTS WIN EMRB
HEARING AND REINSTATEMENT
By Michael Langton and
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."
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