Labor & Employment Law Daily Wrap Up, LABOR—ARBITRATION—Probation officer who mimicked Nazi gestures is reinstated, (Aug 6, 2025)

By WK Editorial Staff

His behavior was inappropriate and unprofessional, but the arbitrator found termination was not proportional given the officer’s clean record and the lack of harm or animus.

A Wasco County probation officer was ordered reinstated with full back pay and benefits after an arbitrator concluded that the officer’s discharge for engaging in a recurring Nazi-themed joke with a coworker was not supported by just cause. Though the behavior was deemed inappropriate and unprofessional, the arbitrator found it did not amount to national origin harassment or warrant termination (Wasco County and Federation of Oregon Parole and Probation Officers (Foley, Arb. Mar. 27, 2025)).

The officer, a 12-year employee with no prior discipline, admitted to participating in a recurring exchange with a fellow officer in which the two mimicked Nazi gestures (an “imitation Hitler salute” where the other employee would place two fingers under his nose to symbolize a Hitler mustache while the employee addressed the other worker as “Mein Fuhrer”). The conduct took place in a hallway, out of public view, and was not directed at any specific individual. The incident came to light after three foreign-born officers, one of whom was a German immigrant, filed workplace complaints concerning management style, disparate treatment, and the Nazi-themed banter.

Investigation. The county placed both officers on leave and hired an external investigator. Of 18 allegations against the grievant, only two were substantiated: the officer’s own admission to the joke and acknowledgment that some behavior could be perceived as flirtatious. No evidence of discriminatory targeting was found, and the investigator offered no disciplinary recommendation. The county nonetheless terminated the officer, citing violations of harassment and conduct policies.

Colleague not called as witness. Applying the heightened “clear and convincing” standard required in stigmatizing cases, the arbitrator found the county failed to meet its burden. The officer’s colleague—who was also discharged but did not grieve—was not called as a witness, and the arbitrator drew an adverse inference from the absence of key testimony.

Inconsistent enforcement. Testimony established that the office culture had long included physical joking and informal banter among staff and supervisors, including behavior similar in tone to what the officer was disciplined for. No evidence showed prior enforcement of relevant policies or warnings to employees. The arbitrator found that this inconsistent enforcement undermined the officer’s notice that termination could result.

Incomplete investigation. Allegations of sexual harassment were also rejected. The arbitrator noted the investigation was incomplete and that the conduct did not meet the county’s own definition of sexual harassment. Witnesses, including the officer’s coworkers, confirmed that the behavior was not sexual in nature.

Written reprimand instead. Under the just cause framework from Enterprise Wire, the arbitrator found the county failed to satisfy multiple elements, including fair notice, proof, and proportionality. Although some discipline was warranted, a written reprimand was deemed appropriate given the officer’s clean record and the lack of harm or animus.

The county was directed to reinstate the officer within ten working days and to provide full back pay, seniority, and benefits. Arbitration costs were split evenly between the county and the union. The arbitrator retained jurisdiction for three months to oversee implementation.

Attorneys: Kyle T. Abraham for Wasco County. Seth Davis for Federation of Oregon Parole and Probation Officers.

Companies: Wasco County; Federation of Oregon Parole and Probation Officers

Cases: Labor Arbitration Discharge RemediesDamages NationalOrigin Discrimination SexualHarassment