I frequently tell my clients or potential clients that if they want fairness at work, then they need to form a union. The case of Lt. Joseph Salvaggio of the San Antonio Police Department illustrates why. Lt. Salvaggio took the exam for promotion to captain in 2010. One of the instructions was that if a candidate needed a restroom break, s/he should cover the answer sheet and not take any test materials with him to the restroom. No definition of "test materials" was offered. Between the morning and afternoon test sessions, the candidates were allowed to study for the test. In past exams, the test proctors had allowed the candidates to use scratch paper during the exam and did not collect the scratch paper at the end of the same.
Lt. Salvaggio had a post-it note the day of the test with notes on it. He had recorded topics he wanted to review during the mid-day break. As he left to go to the restroom, he took the post-it note with him. The proctor noticed the post-it note. He told the on-site San Antonio PD officer. The officer told a higher-up who eventually told the Chief of Police, William McManus. Several months later, a scandal developed regarding a detective exam. Some detective candidates had removed a test booklet from the testing site. During the subsequent Internal Affairs investigation, the post-it note with Lt. Salvaggio was mentioned and a separate investigation was launched. A couple of months later, the Lieutenant was notified that he was accused of violating a Civil Service Commission rule prohibiting a police officer from bringing discredit upon himself or the department. He was accused of removing test materials from the test site.
The Chief is advised by two advisory boards, one civilian and one composed of police officers appointed by the Chief of Police. The civilian board advised that no action should be taken against Lt. Salvaggio. The police advisory board recommended a thirty day suspension. The Chief, however, chose to place the lieutenant on indefinite suspension, tantamount to termination.
Under the terms of the Collective Bargaining Agreement, the captain candidate filed a grievance. The grievance was heard by an arbitrator in December, 2010 and the lieutenant won. The arbitrator found that Lt. Salvaggio did not violate any established rule. The city filed suit as its appeal. Arbitral findings are difficult to overturn. The whole point of union arbitration is to reach a quick, decisive result. The city challenged the finding based on a lack of jurisdiction, arguing that the arbitrator was enforcing a rule created not by the Civil Service Commission, but by the arbitrator himself. That is, the City seems to be arguing that since there was no rule regarding what was test materials, the arbitrator in effect created one in some way. I find their argument confusing.
The City lost in district court. It lost again before the Fourth Court of Appeals. The Fourth Court found that the arbitrator did not create a rule. Only the Civil Service Commission could define "test materials." And, the Commission did not promulgate any such definition. So, the Chief cannot then employ his particular definition. Indeed, said the Fourth Court, the Chief had effectively created a new rule by defining post-it notes as "test materials."
Now, the City has filed an appeal with the Texas Supreme Court making essentially the same argument. See notice and petition for review. The Texas Supreme Court is rather friendly to employers, so perhaps this appeal is not completely futile. But, the City’s argument is based on logic that seems to make little sense. It is unfortunate that this employer has chosen to spend tens of thousands of dollars on what some would describe as a "frivolous" appeal.
And, it all started with a chief executive who did not accept the recommendation of his own advisory boards. Yes, we should terminate employees who break the rules, even 23 year employees like Lt. Salvaggio. But, we, as employers, should be very certain that our rules are clear before we end a 23 year career.
If the lieutenant was not a union member, he would have no recourse. Under the at-will doctrine, an employer can indeed terminate an employee for a silly reason or for a mis-perception. Lt. Salvaggio must really appreciate his union membership, now.