Two County juvenile probation officers were terminated for allegedly abandoning their posts after they were incarcerated for separate incidents. They were unable to report for work for more than five consecutive days which, according to County policy, automatically considered them as having abandoned their posts and they were immediately terminated.
The two cases were consolidated for arbitration. Rick McCann, Executive Director of NAPSO, represented the two officers at the hearing. During the hearing, the County argued that incarceration was not an appropriate form of authorized leave under the labor agreement (such as vacation, sick leave or leave without pay). Accordingly, since it was not an acknowledged form of leave, the officers could not use any form of authorized leave to cover their incarceration time and, therefore, their time away from work was unauthorized. Moreover, the County argued that it maintained a past practice of discharging employees throughout the County for incarceration in excess of five consecutive work days, so it was merely following that practice in these two cases.
In his decision, the arbitrator concluded that incarceration may, indeed, be a form of pursuing "non-employment objectives," which is part of the definition of "vacation" leave as defined in the labor agreement. Just because incarceration is not specifically mentioned in the things you can do while on vacation, doesn't mean you can't define incarceration as a part of vacation leave.
The arbitrator also concluded that there was no valid past practice being observed by the County in these cases because the practice the County has been following for other County employees was never communicated to, nor accepted as a practice by the juvenile probation officers association. In addition, McCann offered the testimony of two juvenile probation officers who had each been incarcerated in the past, yet had been permitted to cover their time with vacation, sick leave or accumulated comp time. This testimony seriously undercut the County's argument that it consistently applied this "past practice" to all County employees.
Concluding that the County arbitrarily applied a rule against allowing leave for incarceration time, the arbitrator sustained the grievances, returned the officers to their positions and awarded them back pay and benefits.