A decision in binding arbitration announced Sept. 16 found that Van Buren Township Fire Fighter Kenneth Landstrom did not violate any fire department rules after a bad word appeared on his Facebook page.
In sustaining Landstrom’s union grievance against Van Buren Township, arbitrator Barry Goldman ruled that a one-day suspension was to be removed from Landstrom’s record and he is to be made whole for any losses.
“The record is unclear about exactly what damages the Grievant suffered that remain uncompensated,” Goldman wrote. “For that reason I will retain jurisdiction in the event there are any questions with regard to the implementation of this award.”
Landstrom, a paid-per-call VBT fire fighter since March 2003 and an outspoken former candidate for VBT office, had supported the township officials targeted for recall last winter. Those seeking the recall had pushed for Landstrom’s discipline.
Landstrom was suspended on Jan. 29 for five consecutive duty crew shifts (Jan. 31-Feb. 15) by Fire Chief Darwin Loyer. (This was later reduced to one day after an administrative hearing before Township Supervisor Paul White.)
On Feb. 1, the Michigan Association of Fire Fighters filed a grievance alleging the suspension was not for just cause. On Feb. 3, Public Safety Director Carl McClanahan denied the grievance.
Landstom was being punished for allegedly violating various township fire department standards of conduct.
The suspension stems from an inappropriate statement found on Landstrom’s Facebook page that was accompanied by a picture of him and his grandson, both in fire department turnout gear, with the child’s outfit a miniature version of his grandfather’s.
Landstrom’s gear was issued by Van Buren Township, but was not marked in
any way to indicate that. The fire truck behind the two was a VBT truck, but no markings were visible.
The case was about whether Landstrom violated the Employer’s Standards of Conduct by allowing the words, “Kenneth Landstrom is a fan of: Stores, Fuuck it….Lets get drunk” to appear on his Facebook page.
In a June 15 binding arbitration hearing, Landstrom explained that this is a link that his son, who is serving in the military on a tour of duty in Iraq, sent to him and when he clicked on that link it put it on one of the pages in his Facebook account.
This Store, “Fuuck it….Lets get drunk” actually has its own account on Facebook which was apparently created on Dec. 31, 2009 by a Stewart Macaulay and has 694,067 fans.
Eric Feldkamp, one of the supporters of the recall, had emailed Chief Loyer several times complaining about Landstrom supporting other’s statements while in uniform (a navy t-shirt with a logo) at a public meeting and Landstrom was disciplined for that. He also was counseled on Jan. 14 for what was deemed an inappropriate statement on his Facebook page.
VBT Police Captain Kenneth Brooks, another supporter of the recall, on Jan. 26 brought a print copy of Landstrom’s Facebook page to the attention of then-Interim Public Safety Director McClanahan, who passed it on to Fire Chief Loyer for investigation.
McClanahan reviewed Loyer’s investigation and denied the grievance.
“I find that Senior Fire Fighter Landstrom’s conduct while off duty brings public criticism and causes management to spend an atypical amount of time and management cost to investigate and respond to the criticism about his behavior,” McClanahan wrote in response to the grievance.
“I also find that the crude language displayed on his Facebook page, while wearing a fire fighter’s uniform has a direct and detrimental impact on the department’s public image (Standard of Conduct 1)
“I am aware of his right to free speech, however his free speech right, in this case, is in direct conflict with the fire department’s business interest of maintaining integrity and upholding the public’s trust in the Van Buren Township Fire Department, and is thereby a violation of Standard of Conduct 7.
“I also find that Senior Fire Fighter Landstrom failed while in uniform to honor and display respect for customs and traditions of this department and the fire fighting profession by displaying himself in his fire fighting uniform with crude and offensive language (Standard of Conduct 7). In this case I find that he refused to comply with the established rules, policies and standard operating procedures of the fire department (Standard of Conduct 16).
“Finally, I find that Senior Fire Fighter Landstrom has established a pattern of deviation from standard operating procedures and directives that is significantly different from the compliance rates of other employees; and, has habitually challenged policies, standard operating procedures and directive without providing objective, unbiased and documented facts (in written form) to support justification for such deviation (Standard of Conduct 17).
“Based on the facts and circumstances as described above, and my review of Senior Fire Fighter Landstom’s disciplinary history over the past three years, which involves eight incidents including three Written Reprimands, I concur with Chief Loyer’s decision to suspend Senior Fire Fighter for five shifts. Therefore this grievance is denied at this step of the grievance process.”
On Feb. 18, Landstrom’s discipline was reduced to a one-day suspension by Supervisor White at another step in the union process.
The next step was for the arbitrator to decide on the one-day suspension.
In the township’s post-hearing brief by attorney John Clark, Landstrom’s Facebook statement was described as “vulgar and juvenile profanity which cannot and should not be tolerated by the Township, especially when such statement is placed in close proximity to a photo of the Grievant in his Township Fire Department turn-out gear.”
In the union’s post-hearing brief, MAFF Labor Relations Specialist Ronald E. Palmquist, asked the arbitrator to “grant the grievance, removing any and all records of the one-day suspension from the grievant’s personnel file, require the Employer to pay back any and all back pay and benefits to this grievant for the one-day suspension, plus the ten hours for the missed call-out runs and make this grievant whole.”
And, that’s what Arbitrator Goldman did.
He wrote that VBT argued that the offending comment is not protected by the First Amendment because Landstrom was not commenting upon matters of public concern and he agreed.
“But it does not follow that the Employer had just cause for the suspension.
“The proper analysis here has to do not with the rather esoteric area of free speech right for public employees, but with the more garden-variety issue of off-duty conduct,” Goldman wrote in his decision.
“In general, an employer has no authority to discipline its employees for off-duty conduct …” Goldman wrote, noting the exceptions are referred to as the requirement of nexus in the workplace.
“Employers are not society’s chosen enforcers. They have no general authority to punish employees for illegal or offensive off-duty conduct that has no significant impact on the employer’s business,” he wrote, quoting “The Common Law of the Workplace” p. 181.
Goldman wrote that VBT has shown no impact or probable impact that the appearance of that phrase has had or conceivably could have on the safe, effective or efficient operation of the department.
Although Landstrom is dressed in his department’s turnout gear, “… there is nothing in the picture or elsewhere on the page that identifies the Grievant as an employee of the department.
“Only someone who already knew that the Grievant was employed by the Department would be able to make the connection.
“And, only someone who was actively seeking an opportunity to be offended by something the Grievant did would bother to be offended by his Facebook page,” Goldman wrote.
“The record shows that precisely this kind of back-story was at work here. A citizen who was opposed to the Grievant on unrelated political grounds was the source of the complaint that brought the Facebook page to the Employer’s attention.
“There is no evidence that anyone other than that citizen and the Employer’s personnel responsible for the discipline ever saw the offending remark,” he wrote.
“In order for discipline for off-duty conduct to meet the just cause standard, the conduct in question must be shown to cause substantial harm to the employer.
“The fact that the Grievant has a bad word on his Facebook page is not sufficient to make that showing.
“I find, therefore, that the Employer has failed to show sufficient nexus to the workplace to establish just cause for the one-day suspension resulting from the Grievant’s off-duty conduct,” Goldman concluded.
While Landstrom was understandably delighted with his vindication, he said he was afraid of making any comment for print because, “I may violate another standard of conduct or procedure.”
MAFF’s Labor Relations Specialist Palmquist said actually the arbitration cost more to do than the monetary amount the township owed Landstrom – which amounts to a few hundred dollars.
The initial five-shift suspension was reduced to one shift, but also took away all Landstrom’s fire fighting duties, so he was unable to respond to call outs, Palmquist said.
The fire fighters have regular jobs and have to work in the duty crew and call outs around their jobs, he said.
The pay owed Landstrom would be his hourly rate ($17.82) times 12 hours for the duty crew shift and the hourly rate times 10 hours for the calls for service.
He has already been reimbursed for the four shifts that were taken away and then restored by the supervisor.
“Because it was off-duty conduct, it was our position it did not justify even one day,” Palmquist said.
He said the issue could have been resolved without arbitration, but both sides were convinced they were right.
Palmquist said the situation is sad because it stems from the political environment at the township.
“The police and fire fighters should keep politics out of their professional work,” he said.