CHAPTER 143, TEXAS LOCAL GOVERNMENT CODE
THIRD PARTY HEARING EXAMINER PROCEEDING
BEFORE THE AMERICAN ARBITRATION ASSOCIATION
In the Matter of Appeal Between
Engineer/Operator Michael J. Niemann,
Grievant,
and
City of Houston, Texas,
Respondent.

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AAA No. 01-15-0002-9798

HEARING OFFICER:
AlmaLee P. Guttshall, J.D.
COUNSEL FOR GRIEVANT:
Rick C. Mumey, Esq.
The Mumey Law Firm
1225 North Loop West, Ste. 1000
Houston, TX 77008
COUNSEL FOR RESPONDENT CITY OF HOUSTON, TEXAS:
Nirja S. Aiyer, Esq., Sr. Asst. City Attorney
City of Houston Legal Dept., Labor, Employment & Civil Rights
900 Bagby, 3rd Fl.
Houston, TX 77002
Location of Hearing:
Garden Level Conference Room 124
6ll Walker
Houston, TX 77002
Date(s) of Hearing: August 11, 2015
Briefs Due and Filed: October 27, 2015
Hearing Closed: Upon Receipt of Briefs
Issue: Discipline/Just Cause/10-Day Suspension.
Code Provisions:
TLGC §143.051, 101 et seq.
Executive Order 1-18, Social Media Policy, effective January 4, 2011;
City of Houston Civil Service Commission Rule 13, Sections 5 & 6;
Houston Fire Dept. Guidelines-Rules and Regulations, Vol 1, Ref. 1-01, Section 5.04;
1

 City of Houston Administrative Procedures-Violence in the Workplace, Section 6-Prohibited
Content.
Other: Collective Bargaining Agreement Article 16
AWARD
The grievance is SUSTAINED. All references to the discipline or related documents shall be
expunged from Grievant’s record, no further action may be taken against the grievant related to
the discipline, posting or investigation and Grievant shall be made whole for any and all losses. I
will retain jurisdiction over this matter concerning any issue related to remedy.
SO ORDERED, this 10th day of December, 2015

AlmaLee P. Guttshall

2

 ISSUES PRESENTED
The Parties agreed that the issues presented were:
1. Was the 10-day suspension without pay of Engineer/Operator Michael J. Niemann for
just and sufficient cause?
2. If the suspension was not for just and sufficient cause, what shall the appropriate remedy
be?
PROCEDURAL HISTORY
On February 23, 2015, Fire Chief Terry Garrison (“Chief Garrison”) issued a ten-day suspension
to Operator/Engineer Michael J. Niemann (“Niemann”) for alleged violations of the Civil
Service Commission Rules, Houston Fire Department Guidelines -- Rule and Regulations, City
of Houston (“City”) Administrative Procedures – Violence in the Workplace and the City’s
Policy on Use of Social Media. Niemann timely notified the City of his intent to appeal the
suspension, denying the truth of the charges against him and excepting to the legal sufficiency of
the charges.
The parties selected the arbitrator for this matter from the American Arbitration Association
Labor Panel of Arbitrators. They agreed that the hearing would be held on August 11, 2015, at
the above-cited location. Subpoenas were issued for the attendance of some witnesses. The
witnesses were sequestered except for the Grievant, the Union’s Representative and the City’s
representative. All witnesses were duly sworn before giving testimony.
The hearing commenced at 9:00 am on August 11, 2015. The parties agreed that the matter was
properly before the arbitrator. The parties did not dispute that the following were related to the
grievance: Chapter 143, Texas Local Government Code, TLGC §143.051, 101 et seq.; Executive
Order 1-18, Social Media Policy, effective January 4, 2011; City of Houston Civil Service
Commission Rule 13, Sections 5 & 6; Houston Fire Dept. Guidelines-Rules and Regulations, Vol
1, Ref. 1-01, Section 5.04; City of Houston Administrative Procedures-Violence in the
Workplace, Section 6-Prohibited Content; and Collective Bargaining Agreement Article 16.
The City and the Union offered the following exhibits, which were admitted into evidence
without objection:

3

 CITY EXHIBITS
Ex.
No

Date

Description

1

2/23/15

Suspension letter

2

2/15/15

OIG letter to Neimann

3

10/6/14

Michael Neimann’s OIG Sworn Statement

4

9/1/14

Sky-Eagle resignation letter

5

9/1/14

Houston Chronicle

6

9/1/14

Click 2 Houston

7

9/1/14

Fox News

8

8/17
/14
8/10/14

Facebook posting

9

Vela email
HFD Guidelines- Rules and Regulations, Vol. 1, Reference 101: 5.04 Conduct and Behavior
City of Houston- Executive Order 1-18, Policy on Use of Social
Media 10.9.2
HFD Code of Disciplinary Conduct

10
11
12

UNION EXHIBITS
Ex.
No

Date

Description

1

Texas Local Government Code sections 143.1015, 143.1016,
143.117, 143.118, 143.119, and 143.120

2

Appeal letter

3

8/17/14

4

Facebook thread
HPFFA Local 341 Bylaw excerpts

5

8/6/14

HPFFA Local 341 - Board of Directors minutes

6

8/7/14

HPFFA Local 341 - Membership minutes

7

HPFFA Local 341 Trustees' letter to Bryan Sky Eagle

4

 8

CBA Article 16

9

8/27/14

Sky Eagle complaint against George Saldana

10

10/20/1
4

George Saldana OIG statement

11

2/13/15

Clayton Harris OIG Determination and HFD Counseling Form

12

8/27/14

Sky Eagle complaint against Jason Faircloth with Facebook
thread

13

2/5/13

Performance Ratings

FACTS
In October 2013, in a contentious election 1, a majority of the Houston Professional Fire Fighters
Association Local 341 (“Association,” “Union” or “Local”) voted for Bryan Sky-Eagle (“SkyEagle”) to be Local President. 2 Pursuant to the Collective Bargaining Agreement (“CBA”), the
City agreed that the Union President would be assigned to the Association office rather than to
his usual district/station location. UX 3 8, CBA Article 16. Because he was President and
assigned to the Association office, Sky-Eagle had the use of a truck owned by the Union. The
Union Board of Trustees is bound to:
Have direct control and management of all…property, both real and personal,
owned by this Association or that this Association may have an interest in, and
any and all other property of this Association, and shall maintain same in good
condition at all times.
UX 4, § 5. Board of Trustees.
In June 2015, Sky-Eagle presented the Association with a new contract he negotiated with the
City. CX 5. The contract was rejected by over 90% of the voting members. Id. Before this
rejection, Sky-Eagle apparently had already lost the trust of the rank and file and encountered
hostile behavior by union members. CX 5, Sky-Eagle Testimony. He testified that on one

1

Sky-Eagle specifically described it as such in his testimony.
Sky-Eagle was not a Union member until one year before his election and resigned his membership when he
resigned his presidency.
3
Union Exhibits will be designated as “UX.” City Exhibits will be designated as “CX.”
2

5

 occasion the members heckled, jeered, pushed and shoved him as he left a meeting. 4 On another
occasion, some members beat on his car as he was trying to drive away from the meeting.
Following the almost unanimous rejection of the new contract, the membership increasingly
disapproved of Sky-Eagle’s leadership. Id.
During this same period, the Board of Trustees complained to the International Association of
Fire Fighters (“the International”) about some of Sky-Eagle’s actions including Sky-Eagle’s
filing a lawsuit in the name of the Local against the International and changing a number of
Local practices. District Chief Curtis Williams (“District Chief Williams”) Testimony. The
International accepted all 13 (thirteen) charges against Sky-Eagle. Williams Testimony. Sky
Eagle resigned in September 2014; he said he was doing so because of threats to his family.
Shortly before his resignation, the International selected a trial board to proceed against SkyEagle. CX 5, Williams Testimony. Sky-Eagle attempted to dodge service of the charges and
refused certified mail. Williams Testimony. Williams stated the he inferred from Sky-Eagle’s
actions to avoid service of the charges and his resignation that he did so as the only way to avoid
the International trial board. Williams Testimony.
In the midst of the deteriorating situation, Sky-Eagle requested a transfer from the Union Hall
back to his station claiming that he feared for his personal safety because of actions of Firefighter
Kerry Williams; the request was granted. Sky-Eagle Testimony. He testified that Kerry
Williams 5 came to the Association office three times in July 2014, screaming at Sky-Eagle and
frightening the office workers. Id. He stated that on one of these occasions Williams blocked him
in his office. Id. 6
When Sky-Eagle left his post at the Association office, the Board of Directors met on August 6,
2014 to vote on a proposal to require Sky-Eagle to return the Association truck, which was at his
disposal as Union president because he was assigned to the union hall rather than to a station.
UX 5. The proposal was approved by the membership at a meeting on August 7, 2014. UX 6.

4

Sky-Eagle strenuously objected to one of the Trustees providing beer in the parking lot at the Union Hall before
meetings. He felt this contributed to a raucous environment that he tried to control by appointing Sergeants -at-arms,
hiring security and adjourning meetings.
5
Apparently, Williams was removed from the Department.
6
Sky-Eagle testified that Williams’s actions upset the female workers at the Union office. There was no evidence
that Sky-Eagle filed a complaint against Williams regarding his frightening behavior.

6

 The Union notified Sky-Eagle of the requirement to return the truck on August 8, 2014. UX 7.
He refused.
During Sky-Eagle’s turbulent presidency, at least two Association members started closed
Facebook (“FB”) pages. 7 Testimonies of Sky-Eagle, District Chief David Elliott (“Elliott’) and
District Chief Williams. The intent was to provide Houston Firefighter Association members
with a safe forum to discuss union and work-related matters, i.e., to share news and opinions as
well as engage in “union speak” and “venting.” Sky-Eagle claimed to have been given access to
a Houston firefighter closed FB page for approximately two weeks, but was then “unfriended”. 8
Both Elliott and District Chief Williams denied ever granting Sky-Eagle access to their closed
FB pages.
Sky-Eagle’s refusal to return the truck became a matter of controversy among Union members.
Some of them voiced their disapproval of Sky-Eagle’s refusal on the closed FB pages. The
evidence shows that August 17, 2014, Firefighter George Saldana (“Saldana”) posted a picture of
a truck on Elliott’s closed FB forum, with the comment on the picture, “Have you seen this
truck? Where is our Union Truck?” On his post, he said:
Anyone seen it? Apparently, BODs asked for the truck back since our Union
President wasn’t going to the Union Hall every day and the Presidents response
was “Fk You” to a certain individual.
Apparently we are paying for a certain member to fill his truck up with the Union
Card…This is some Bullshit! Have a good day!
UX 3. 9 As the exhibit shows, other closed FB members could respond (or not) by selecting from
the options of “Like,” “Comment,” “Get Notifications,” or “Share.” Id. If a member selected
“Comment,” a dialog box opened permitting him to comment on the original post. Selecting
“Comment” would also show all previous comments made in response to the original post.
Comments responding to the original post constitute the “thread.” However, the only manner in
which a member of the closed forum would see the thread is to click “Comment” on the original
7

A closed Facebook page is created by an Administrator. It is “closed” because it cannot be accessed by anyone
unless the individual requests access from the Administrator and the Administrator grants it. Such a “page” cannot
be accessed by someone who has not requested and been granted access. The page is not accessible to anyone who is
not granted access by the Administrator. The general public cannot access the posts on the page; if they see
anything, it is limited to the “Home” page, which does not show comments or threads.
8
The Administrator has the ability to block access even if it had been previously granted, i.e. “unfriend.”
9
Quotes from FB pages are reproduced here unedited, exactly the way they appeared. No spelling, grammatical
errors or punctuation errors were corrected.

7

 post. If the closed FB member did not select “Comment”, he would only see the original post; he
could not see any of the postings in the thread.
One of the union members with access to the page was Operator/Engineer Michael J. Niemann
(“Niemann,” “Grievant”). Niemann has an exemplary record with the Fire Department and his
supervisors consistently rated him outstanding in his performance appraisals. He was personally
selected to be an Incident Command Technician (ICT) to the District Chief, a distinct honor in
HFD.
At 11:46 a.m., following Saldana’s post, Niemann commented on “Have you seen this truck,”
stating, “Yes George Saldana…union thug repo…catchy title.” UX 3. At 4:03 p.m., following a
number of “creative” proposals for group action to retrieve the truck, Niemann posted:
I would rather go as an individual [rather than as a group]. That way maybe he
will become aggressive trying to guard [the truck] and I can “defensively” beat
the piss out of him.
Id.
Saldana responded to Niemann’s post, saying, “Or go as a group and laugh as we take off lol
[laugh out loud].” Id. The next comment stated, “Then we could all moon him.” Id. The
comments continued in the same vein, suggesting getting a boot and putting it on the truck,
taking a group selfie after booting, booting all four wheels, etc. Obviously, no one in the thread
considered Niemann’s post a threat; it was perceived as a part of the continuing of the silly
proposals to recover the truck. The postings became serious when a Firefighter defended SkyEagle’s use of the truck and accused other members of wrong-doing:
I just heard that one of the reasons so many guys hate him is he took away their side jobs.
I heard L341 [Local 341] was paying $25/hr to guys to do union stuff…like drink beer,
play golf, sit silently at grievance hearings, etc. Any truth to it? If so…good job BSE
[Sky-Eagle].
The discussion then persisted for a while about the allegations made in this post and the history
of union presidents’ use of the truck. This part of the thread was a vigorous debate regarding
union matters. Although it was not “jokey,” it did not contain any “threats” or proposals to
recover the truck using self-help.

8

 On August 27, 2014, 10 Engineer/Operator Riggs (“Riggs”), a member of the closed FB page,
provided Sky-Eagle a copy of the posts. CX 8. Sky-Eagle Testimony. 11 Sky-Eagle immediately
filed complaints alleging fear of bodily harm to himself, his wife and his children against ten
(10) firefighters, one of whom was Niemann. 12
Niemann’s alleged threat on the closed FB thread occurred on August 17, 2014, ten days before
Sky-Eagle became aware of the thread and filed his complaints. There is no evidence that any
firefighter, including the ones participating in the thread, communicated with Sky-Eagle in any
manner. Nor is there any evidence that any firefighter, including the ones participating in the
thread, took any action in any manner against Sky-Eagle. 13 All witnesses at the hearing,
including Sky-Eagle, agreed that there is no history of violence in this union.
On September 1, 2014, Sky-Eagle resigned as Local 341 President. CX 4. He called a news
conference to announce and publicize his resignation. CX 5, 6 and 7. He was quite vocal in
declaring he was resigning because of threats of physical harm. He did not mention an upcoming
International trial board, which charged him with 13 infractions of the Union’s constitution and
by-laws. See supra at page 6. Local news media carried stories about his news conference and
resignation. Id. Sky-Eagle claimed that he called a press conference because “city officials
needed to know” about his resignation. There was no evidence presented showing that Sky-Eagle
sought city authorization to hold a press conference or that he attempted to notify city officials
about his resignation in a less public manner.

10

CX 8 indicates on the right side of the first page that it was printed from email10 sercureserver.net view on
August 27, 2014. Further, the complaints in evidence show a filing date of August 27, 2014.
11
On August 10, 2014, Firefighter Alberto Vela sent an email to Sky-Eagle stating:
All I can say is wow! Man thanks a lot! “Being a smart ass”.
I’ve worked with you many times and never thought you would do this! I’m getting out of the
union. Btw I’m surprised ur not scared at night just saying!!!!
At the hearing, Sky-Eagle stated that this was a warning, not a threat. At the time, however, he filed a complaint
against Vela asserting that the message was a threat.
12

The evidence showed that Sky-Eagle filed similar complaints against Jason Faircloth, George Saldana, Clayton
Harris, Ryan Horton, Jaron Black, Alberto Vela, District Chief Elliott, Captain Billy Fly. Harris received a personal
discussion, Horton a 5-day suspension, Black, 5-day suspension, Fly, 2-day suspension and Niemann, 10-day
suspension. Saldana, Vela and Elliot received no discipline.
13
Despite these facts, Sky-Eagle stated that all ten should have been fired, primarily because he did not believe they
would “have his back” in the field. All the firefighters testifying said they would trust Sky-Eagle in the field and that
he could trust them.

9

 On October 6, 2014, the City of Houston’s Office of Inspector General (“OIG”) required
Niemann to appear and respond to questions about his August 17, 2014 post regarding Sky-Eagle
and the Union truck. 14 CX 3. There is no evidence showing when Niemann knew he was the
target of an investigation other than the October 6, 2014 appearance. In response to OIG’s
question regarding the context of his comments about Sky-Eagle and his refusal to return the
truck on the closed FB page, Niemann said:
Earlier that day the Board of Trustees of the HPFFA sent an e-mail to Capt. Sky-Eagle
requesting that he return the truck to the Union Hall. In this closed forum we were just
venting our frustrations regarding Capt. Sky-Eagle’s failure to return the truck.
The OIG then asked Niemann:
Please tell us what you meant by “I would rather go as an individual. That way maybe he
will become aggressive trying to guard it and I can “defensively” beat the piss out of
him?
Niemann responded:
This was just venting. I never really put much thought into it. I was just saying that if he
were to get aggressive with me I could defend myself.
CX 3. Niemann responded to OIG’s further questions, stating that he did not know Sky-Eagle
personally, he never took any actions in regard to the Union truck, had no plans to do so, did not
know where it was driven and had not made threatening remarks or called for violence against
Sky-Eagle online or off. Id.
On February 15, 2015, OIG notified Niemann that it had completed its investigation. The letter
stated that it had sustained the allegations of his violations of “HFD Rules and
Regulations…§5.04 – Conduct and Behavior, Executive Order 1-18: Policy on Use of Social
Media §10.9.2 and Administrative Procedure 3-21: Violence in the Workplace §6.19.” CX 2.
Fire Chief Terry Garrison upheld the recommendations of the OIG. He sent a memorandum to
Niemann on February 23, 2015 informing him that he was suspending him for ten (10) working
days for violations of the following rules and regulations:
1. Rule 13, § 6 Causes of Dismissals and Suspensions

14

OIG handled the investigation of Sky-Eagle’s complaints because of concerns that if the Fire Department’s
Internal Affairs investigated, there was a potential perception of a conflict of interest. OIG has a different chain of
command and it was believed that it would guarantee the integrity of the investigation. Donna Michelle McLeod
Testimony.

10

 No Fireman…shall engage in or be involved in any one of the following acts or conduct
and the same shall constitute cause for…the suspension of a Fireman….
(d) That the employee has violated any of the provisions of the Charter of the City of
Houston or has violated any of the provisions of the Fireman’s Civil Service laws, or the
rules and regulations of the Civil Service Commission, or the rules or special orders of
the Fire…Department.
(j) That the employee has been wantonly offensive in conduct or language towards the
public or towards City officials or officers or employees, or shows discourtesy to the
public or to fellow employees while said employee is in the line of duty, and
(k) That the employee has been guilty of conduct unbecoming to an officer or employee
of the City of Houston.
2. Houston Fire Department Guidelines – Rules and Regulation, Volume 1, Reference 1-01:
5.04 – Conduct and Behavior: Members, whether on or off duty, shall be governed by the
ordinary and reasonable rules of good conduct and behavior of law abiding citizens. They
shall not commit any act tending to bring reproach or discredit upon themselves or the
department.
3. City of Houston Administrative Procedures – Violence in the Workplace
Section 6 – Prohibited Conduct
6.19 - Threatening or intimidating communications, however made and via any form of
delivery, including but not limited to communications made in person, by telephone,
computer or any electronic device, whether written, verbal, text or in the form of instant
messaging etc.
4. 1.18 Policy on Use of Social Media:
10.9

The following guidelines apply to personal communications
using various forms of social

10.9.2 The City expects its employees to be truthful, courteous, and respectful toward
supervisors, co-workers, citizens, customers, and other persons associated with the City.
Employees shall not engage in name-calling or personal attacks or other such demeaning
behavior.
CX 1.
The Fire Chief disregarded Niemann’s assertion that he made the statements because he was
“frustrated” with Sky-Eagle’s defiance of the Board and that his comments were “just venting.”

11

 The Chief’s reaction to Niemann’s statements was to call him a liar. He said:
Apparently, with much coaching from the Union since all the respondents answers were
extraordinarily similar, all respondents stated that they were just joking or venting in this
“closed” forum and had no plans to harm Sr. Capt. Sky-Eagle or damage the union truck
he was authorized to drive.
Based on the evidence obtained during the course of the OIG investigation, there is
sufficient evidence to prove the allegation that E/O/E Niemann violated HFD Rules and
Regulations. The OIG investigation revealed that E/O/E Niemann and four (4) other HFD
members discussed and commented on plans to retake the union truck that Sr. Capt. SkyEagle was authorized to use as President of Local 341. E/O/E Niemann behaved in an
aggressive and threating [sic] manner when he threatened physical violence towards Sr.
Capt. Sky-Eagle while communicating via Facebook with regards to taking back the
union-owned truck.
CX 1. 15
Assistant Chief Donna Michell McLeod (“McLeod”) testified on behalf of the City at the
hearing. She said that the OIG considered the specificity of the “threat,” looking at time, date,
place to “steal” the truck. McLeod Testimony. 16
McLeod stated that the Social Media Policy applies to both City and personal social websites.
She said that the Social Media Policy was adopted by the City on January 4, 2011. CX 11. She
testified that the Chief sent out an order in October 2014, about use of social media because of
several disturbing incidents. 17 McLeod Testimony. McLeod, speaking for the Chief without
objection, testified that Niemann received a 10-day suspension because he made a specific threat
of physical violence that violated the Social Media Policy, the Violence in the Workplace Policy
(“Workplace Violence Policy”) and other rules and regulations. Id. She implied that Niemann
would have been fired but for his good work history and that Command spoke up for him. Id.
On cross-examination, McLeod testified that the Chief took into consideration the media
coverage, which, she acknowledged, occurred in response to Sky-Eagle calling a press
15

The Chief’s interpretation of Sky-Eagle’s right to the truck flies in the face of the Union’s Board of Trustees’
determination. There was no evidence that the Chief (or OIG) had any basis in fact to make this determination
contrary to the Board’s own finding regarding the issue.
16
The Union made no objection to McLeod testifying to the OIG’s reasons for its findings. However, in a case this
serious about alleged threats of personal injury and violence and a suspension of an outstanding employee, the
Arbitrator accords third-party testimony less credence. The Arbitrator has no doubt that McLeod testified truthfully
about what she was told, but in such a serious matter, the person performing the investigation, making findings and
influencing the Chief’s decision, as well as the Chief himself should be available for cross-examination.
17
The incidents cited were: comments against Muslims; an EMS supervisor posting which implied he was going to
kill Hispanic children; a Firefighter posting a racial slur; and a Captain bullying a school principal.

12

 conference over his resignation. McLeod Testimony. She stated that the FB posts of four
firefighters about which Sky-Eagle complained were different from Niemann’s and others who
received discipline. Supra at note 8. She asserted that the firefighters who were not disciplined
did not make specific threats. McLeod Testimony. In response to questions regarding Firefighter
Jason Faircloth’s post (“If [Sky-Eagle] continues his chicken shit ways I predict he will be
physically and forcibly removed.”), McLeod said that it was not sustained by the Chief because
“it was not specific.” Id. She explained that the Chief did not sustain OIG’s findings about
Firefighter George Saldana because his posts did not threaten “personal injury or an illegal act”
and “OIG may not have had all [of his] comments.” Id. McLeod testified that the goal of the
“discipline was to change behavior and make an example for others.”
McLeod testified that Niemann was the only individual in the Sky-Eagle complaints charged
with violation of Workplace Violence Policy. She stated this decision was not arbitrary; the
Chief and OIG determined that only Niemann made a threat of physical violence.
POSITIONS OF THE PARTIES
City of Houston
1. Niemann’s post about harming a superior officer at a City facility supplied the necessary
nexus between off-duty conduct and the workplace.
2. Concerned with a potential conflict of interest, the Fire Department Internal Affairs turned the
investigation over to OIG to conduct a thorough, unbiased investigation.
3. The Social Media Policy applies to personal closed FB pages. The Social Media Policy put
Department members on notice that it applied to personal FB pages and comments. Niemann
violated that policy by “[engaging] in name-calling or personal attacks or such other demeaning
behavior.” Niemann’s post on the closed FB page violated the Social Media Policy.
4. Niemann made threatening comments on the closed FB page, which violated the Violence in
the Workplace Policy because he said he would “beat the piss” out of Sky-Eagle.
5. The wording of Niemann’s post showed his intent to physically harm Sky-Eagle. Niemann’s
claim that he was frustrated with Sky-Eagle and venting his frustration is a made-up defense
because none of his posts show LOL [laugh out loud] or JF [just joking].

13

 6. Niemann had no cognizable expectation of privacy when he posted on the closed FB page
because the page can be found by anyone making a search, the home page implies an association
with the City and there were no disclaimers that the page was not sponsored by the City.
7. Niemann violated the Code of Conduct because his comments brought reproach and discredit
on the Department because one-third of the Department’s bargaining unit employees are
members of the closed FB page and could see his posts.
8. The discipline issued to Niemann was not arbitrary. He violated several rules and policies. The
discipline was within the proper matrix for such conduct.
The Union
1. The City is attempting to enforce a new rule which seeks to apply the City’s rules and policies
to off-duty “Union speak” regarding internal Union business, which historically does not
recognize on-duty hierarchy of command when “the brotherhood” is engaged in Union
discussions and disputes.
2. Niemann never communicated any comment or “threat” directly to Sky-Eagle and did not
believe Sky-Eagle would be made aware of the FB posts.
3. Neither Niemann nor any other firefighter ever took any steps or engaged in any overt act to
reclaim the truck or approach Sky-Eagle.
4. All nine of the union members about whom Sky-Eagle complained said they were venting or
joking, but five were not believed.
5. The failure to charge the other four firefighters for the same sort of behavior indicates
unfairness and bias, i.e., disparate treatment.
6. The investigation was fatally flawed.
7. The discipline issued to Niemann, who had an unblemished record of outstanding
achievement, was not progressive.

14

 DISCUSSION
Overview
The combined power of rapid technological innovations and creative advertising
has created a storm of consumer desire for electronic communicative devices,
transforming want into need. The use of digital devices and their networks is
reshaping our culture and our workplaces, metamorphosing formerly deniable or
forgettable verbal exchanges into discoverable and distributable electronic written
records.
Can’t Escape from the Memory: Social Media and Public Sector Labor Law, William A.
Herbert, Northern Kentucky Law Review, Vol. 40, No. 3, 2013.
While the cases of inappropriate posts by employees (public and private) have proliferated over
the years and what was once griping to a friend or water-cooler whines and moans that as Mr.
Herbert observed would be deniable or forgotten, this case appears to be one of first impression.
The awards cited by the City, and others cited within those awards, 18 involve some type of
discourteous, unprofessional, demeaning or profane denunciation of supervisors, fellow
employees, clients, etc. However, they do not address a closed FB forum created for union
members exclusively to permit and encourage those admitted to the forum to express freely their
views on union matters. The issue of permitting the City to intrude into matters exclusively
relating to union business requires a determination of whether such intrusion is permissible, and
if so, what words would trigger a permissible intrusion. The parties did not dispute that for the
activity of an off-duty employee to come within the City’s legitimate interest, there must be a
nexus between that activity and a legitimate City interest.
The City’s Burden
The City has the burden of proof. It must establish that it is more likely than not that:
1. A nexus exists between the conduct and a governmental interest;
2. A City employee allegedly violated a statute, rule, regulation or policy;
3. The rule, regulation or policy is reasonable, clear and known to the individual charged
with a violation;
4. The statute, rule, regulation or policy is narrowly drawn and applied strictly within its
terms;
18

The Arbitrator considers both the City’s cited awards as well as those cited within the City’s awards to be “in the
box” and read all of them that were available on the internet.

15

 5. The City conducted a full, thorough and unbiased investigation of the violation
alleged;
6. The person charged is in fact guilty of the alleged violation.
Nexus
In this case, Sky-Eagle made complaints to the City about posts on a closed FB page. He
received copies of them from Riggs ten days after they were posted. 19 Sky-Eagle claimed that he
felt threatened by the comments. Certainly, if Niemann had threatened imminent bodily harm to
Sky-Eagle, his wife and/or his children because of Sky-Eagle’s department-related activity, such
a nexus would be established.
To make that determination, it is necessary to evaluate Niemann’s comment:
I would rather go as an individual [rather than as a group]. That way maybe he
will become aggressive trying to guard [the truck] and I can “defensively” beat
the piss out of him.
In light of the fact that the statement came as a part of a discussion of Sky-Eagle’s continued use
of a union-provided truck to be used, in part so that Sky-Eagle could get from the administration
office to fire scenes when his company was called out, there was sufficient nexus to permit an
investigation into the circumstances in which the statement was made. The posts supported a
limited intrusion by the City into the Posters’

20

personal comments and union business sufficient

to investigate the context of the posts. However, the City’s subsequent investigation established
that the nexus was insufficient to support discipline.
The City received on August 27 the alleged threat made on August 17. The date of the OIG’s
interview with Niemann was October 6, 2014. Ten days passed between the date of the post and
the date Sky-Eagle made his complaint. The facts established that that no one took any action
toward Sky-Eagle in those ten days. This evidence makes the City’s position that the remarks
exhibited an intent to harm Sky-Eagle less credible than if Niemann took some action in
furtherance of carrying out his alleged “threat.” Certainly, even if one assumes it was a threat, it
was not imminent. More damaging is the extent of OIG’s concern: it did not interview Niemann
until October 6, 2014, forty days after the remarks were leaked to Sky-Eagle and passed on to the
City. Again, there is no evidence that during the seven weeks between Niemann’s post and the
19

Sky-Eagle also complained to the District Attorney who refused to consider any criminal action because the DA
understood there was no actual imminent threat of physical harm to Sky-Eagle.

16

 OIG interview that Niemann acted towards Sky-Eagle in any manner whatsoever. Yet, the OIG
determined that Niemann lied when he told the investigator that his comment was nothing more
than venting his frustration with Sky-Eagle. Rather than accept Niemann’s response and the total
absence of any actions taken against Sky-Eagle, OIG found that Niemann was lying and his
responses were the result of a union orchestrated plot to subvert the investigation. There was no
basis for that conclusion, particularly since the nature of the allegedly common answers of the
respondents was dictated by the twenty-four-question form used by the OIC to obtain those
answers.
Investigation
The evidence of the OIG “investigation” presented at the hearing consisted of five pages, one
and one-half of which were the legalese required by Garrity/Spevack. CX 3. The rest of the
investigation is a set of 24 prepared questions. Id. Those 24 questions, the print-out of the FB
comments and Sky-Eagle’s complaint were the only evidence of Niemann’s alleged violations
submitted by the City. Because these five pages were the only evidence submitted by the City to
show its investigation, that investigation is insufficient to establish Niemann’s intent to inflict
bodily harm upon Sky-Eagle.
The “Threat”
The City’s argument that the specific wording of Niemann’s post established sufficient evidence
of nefarious intent is not sustainable. Again, Niemann wrote:
I would rather go as an individual [rather than as a group]. That way maybe he
will become aggressive trying to guard [the truck] and I can “defensively” beat
the piss out of him.
Niemann’s expression “I would rather go as an individual” is in the subjunctive case, i.e., if
anyone goes, he would prefer to go alone. He then speculates that “maybe” Sky-Eagle would
become aggressive towards him. He posits that only if Sky-Eagle became aggressive, i.e., attacks
Niemann, he could defend himself. It is clear from his words that Niemann would only “beat the
piss out of him” if Sky-Eagle were the aggressor.
Furthermore, the City’s assertion that Niemann had the intent to “beat the piss” out of Sky-Eagle,
is not borne out by the facts. The OIG failed to supply the City with any evidence whatsoever
that Niemann engaged in a single overt act, communication or any other endeavor towards Sky17

 Eagle in the ten days between the posting and Sky-Eagle’s discovery of it or within the 40 days
between Sky-Eagle’s delivery of it to the City and OIG’s interview.
The City rejected Niemann’s explanation that he was venting his frustration about Sky-Eagle’s
actions as a Union orchestrated defense because “since [sic] all the responders answers were
extraordinarily similar, all responders state that they were just joking or venting….” However,
the context of the posting, e.g., “Have you seen this truck,” “moon [Sky-Eagle],” etc., indicates
that the Posters were joking and venting.
Most importantly, the fact that the Niemann took no action between the dates of the postings and
the date of Sky-Eagle’s complaints or the OIG interview with Niemann makes more likely the
inference that the posting was venting or joking as a way to deal with his frustrations with an
increasingly unsatisfactory president. If the City punished every gripe or frustration expressed
about a union officer, a fellow employee or a supervisor, it would probably have to suspend the
entire Department at one time or another.
The investigation was cursory at best. The OIG investigation showed that it did not speak with
people who knew Niemann well, worked closely with him or who could say whether Niemann
had ever shown a propensity for violence. The OIG showed bias against the Posters. This bias is
evident in the OIG’s unsupported conclusion that the union orchestrated the Posters’ responses to
the OIG’s because they answered questions in a similar manner. Although there was a nexus
sufficient for the City to investigate, the OIG failed to do so in a thorough and unbiased manner.
Therefore, the investigation was fatally flawed and any reliance on it is fatally flawed as well.
Social Media Policy
The City sustained the charge that Niemann violated the Social Media Policy. It provides in
relevant part:
1. 1.18 Policy on Use of Social Media:
10.9

The following guidelines apply to personal communications
using various forms of social

10.9.2 The City expects its employees to be truthful, courteous, and respectful toward
supervisors, co-workers, citizens, customers, and other persons associated with the City.
Employees shall not engage in name-calling or personal attacks or other such
demeaning behavior.
Emphasis supplied.
18

 The City’s argument that Niemann violated the Social Media Policy is based on its application to
all FB comments. It claimed Niemann violated the Policy by “[engaging] in name-calling or
personal attacks or such other demeaning behavior.” It also claims that the Policy is reasonable
on its face.
The Policy, on its face, requires “name-calling or personal attacks or such other demeaning
behavior”. None of those specific requirements was present in Niemann’s post – no name called
-- no personal attack—no one demeaned.
Assuming one was required to address the issue further, the social media policy is governed by
the same nexus requirement, i.e., that a legitimate City interest be threatened. The only manner in
which social media could threaten the City is if it is used to communicate to a group large
enough or influential enough to damage a City interest. The only individual who engaged in that
sort of behavior was Sky-Eagle and his dramatic press conference.
The City cited three cases to support its claims: Vista Neuvas Head Start, 129 LA 1519
(VanDagens, 2011), AirTran Airways, 131 Lab. Arb. Rep. (BNA) 254 (Goldstein, 2012) and
State of Ohio, Dep’t of Rehab. and Corr. & OCSEA, Local 11, AFSCME, #27-11-201112010010-01-03 (Pincus, 2013), It is not possible to evaluate the significance of those cases because
copies were not provided. 21 It appears from the City’s description that two of the cases are
inapplicable and the third incorrectly decided.
The City described Vista Neuvas as follows:
The arbitrator denied a grievance challenging the discharge of a teacher who
created and administered a closed Facebook group to “gripe” about coworkers,
supervisors, students, and parents of the students. Although the members of the
invite-only group complained about work, their comments were exceedingly
profane and were not related to working conditions. Ultimately, the posted
comments were disclosed to the individuals who were the subject of the
comments, all of whom refused to work with the teacher.
City Brief at 7.
Apparently, the nasty and profane posts were disclosed to those named, but the City’s summary
does not describe who disclosed them. That is critical in this case because Niemann never

21

Although the Arbitrator could access numerous articles about the cases, the awards themselves were not available
through a Google search.

19

 published the post outside the group. Second, the City’s summary shows that disclosure of the
comments caused a major workplace disruption -- the other employees refused to work with the
teacher responsible for the page and who made most of the comments; Niemann’s remarks in his
post did not offend any of his co-workers, but one and there were no appreciable workplace
consequences.
The City described AirTran Airways as follows:
The arbitrator upheld the suspension of a flight attendant who posted threatening
status updates on Facebook directed at the airline’s scheduling department. The
employee made comments such as “scheduling better watch their back” and
“they are all f—king dead.”
City Brief at 7.
Obviously, that case involved an actual threat, not of speculative physical violence, but a
statement that the flight attendant schedulers were “f..king dead.” This threat far exceeds
Niemann’s venting comments.
The City described State of Ohio as follows:
In State of Ohio, Dep’t of Rehab. and Corr. & OCSEA, Local 11, AFSCME, #2711-20111201-0010-01-03 (Pincus, 2013), the arbitrator reinstated a state
corrections officer and modified his discipline to a 14 month temporary
suspension for his inappropriate Facebook posts. In that case, the officer made a
Facebook post about Governor John Kasich following the death of Osama bin
Laden stating, “OK, we got Bin Laden ... let’s go get Kasich next. who’s with
me?’’ Even in that scenario where the employee’s off duty comments were not
perceived to be an actionable threat to the Governor’s safety, the arbitrator found
there was a job-related nexus to the officer’s comments thereby warranting a 14
month suspension in lieu of termination.
City brief at 7.
Reading only what the City said the case held, this Arbitrator disagrees with the conclusion.
Based on the City’s summary of the holding, it appears that Arbitrator Pincus held that finding a
nexus between the conduct and a governmental interest alone was sufficient to uphold the
discipline. The government must produce evidence of a nexus as the first element of a prima
facie case; it is not the end of the inquiry – as is discussed above, it is merely the beginning.
The Policy’s application in this case is impermissibly broad, covering all FB comments that
employee may make on any “closed” forum. The Policy, as written, would cover all internet
20

 communications, including those using Messenger, Google Hangouts, Tango, etc. These
applications are considered social media and allow the user to send a message to one person or
many. However, even sending a message to one person could constitute a violation as the Policy
is applied here. For example, a city employee on his/her lunch hour sends a message to his/her
spouse saying, “My boss is a real sh… He chewed me out for something I didn’t do. He is an
idiot and I hate him. Wish he would die.” If the Policy were applicable to Niemann for his posts
on a closed FB page, then the pseudo employee would have to be disciplined as well for a
violation of the Social Media Policy, as well as the Workplace Violence Policy. This would
appear to be an unquestionably unconstitutional governmental restriction on speech.
The City claimed that the closed FB pages violated the Social Media Policy because they could
be found with by searching “Houston Firefighters.” If the City meant that Niemann’s comments
could be found by such a search, there is no evidence to support that claim. The only evidence on
the subject established that the comments could only be seen by members admitted by the
Administrator.
If the City limited its claims to those pages that could be reached by such a search, it may be
correct that the pages violated the Policy by using logos that mistakenly implied that they were
City sites and lacked any disclaimers that they did not represent the views of the City. These
restrictions in the Policy are valid, specific and not overly broad. However, they have nothing to
do with Niemann. He did not create or maintain either of the pages and had nothing to do with
their appearance. The creators of the pages are responsible for their appearance and lack of
disclaimers, not Niemann. There is no evidence that he had the authority or ability to change the
pages. Furthermore, the policy on logos and disclaimers does not even purport to govern users as
distinguished from creators/maintainers. This violation cannot be laid at Niemann’s door unless
the City charges and disciplines all of the individuals posting on the pages. Obviously, for good
reason, the City has not done so.
The City argued that Niemann had no reasonable expectation of privacy when he posted his
comments on the FB page. However, Niemann testified that he relied on the closed nature of the
page; he stated that he did not think that Sky-Eagle would ever see the comments. He stated he
checked to determine whether Sky-Eagle was a member of the closed FB page. In fact, SkyEagle would not have seen the comments but for Riggs giving them to him. Both Elliott and
21

 Williams testified that they had a policy on admission of union members, limiting access to the
page so that members had a safe place to vent their frustrations. Riggs was not called as a
witness by the City; therefore, his reasons for violating the limited access policy are unknown.
The members of the closed FB page had a reasonable expectation that their comments would not
be shared with non-members.
Because of the above factors, the Social Media Policy, as applied, is an impermissible
government restriction of speech. In order for the Policy to be constitutional, it must be both
drawn and applied narrowly. 22 Section 10.9.2 as applied in this case does not meet that standard.
It was used to restrict and discipline “union speak” in a closed forum strictly about union
problems. If Niemann said the same thing at a union meeting and the City sought to discipline
him, it would clearly be operating beyond it powers. The closed FB page is but a meeting of
union members online. The fact that anyone could access the homepage is irrelevant; just as
individuals who were not union members would not be admitted to the meeting, non-union
individuals seeking to enter the closed FB pages were turned away as well. Consequently, one
must conclude that discipline of Niemann for violation of the Policy in this case was not justified
because it was too broadly applied to “union speak” about union matters on a closed FB forum
for union members only. Furthermore, there is no evidence that Niemann did any of the things
prohibited by the policy.
Workplace Violence Policy
The City charged Niemann with violation of the Workplace Violence Policy. The applicable
section provides:
1. City of Houston Administrative Procedures – Violence in the Workplace
Section 6 – Prohibited Conduct
6.19 - Threatening or intimidating communications, however made and via any
form of delivery, including but not limited to communications made in person, by
telephone, computer or any electronic device, whether written, verbal, text or in
the form of instant messaging etc.
A review of Niemann’s statement shows that his statement was not threatening. If he indeed
planned to “beat the piss out of” Sky-Eagle, his “threat” makes clear that such a plan was

22

See Cohen v. California, 403 U.S. 15 (1971); Cohen v. California, “Inconsequential” Cases and Larger
Principles, Ronald J. Krotoszynski, Jr., 74 Tex. L. Rev. 1251 (1996).

22

 completely within the control of Sky-Eagle. Sky-Eagle would have to retain his unauthorized
possession of the truck. He would then have to “become aggressive”, i.e., start a fight, throw the
first punch, try to physically harm Niemann, before Niemann would act “defensively.”
This Policy requires strict interpretation. Otherwise, its application becomes completely
subjective. The question, therefore, must be, would a reasonable person find Niemann’s
comment “threatening” or “intimidating.” Because Niemann’s comment requires Sky-Eagle to
act “aggressively”, a reasonable person would know any physical harm to him demanded that he
first must attempt to physically harm Niemann.
Most importantly, the evidence established that Niemann was, in fact, venting; he took no steps
to confront, contact, communicate with or seek out Sky-Eagle during the forty-day period
between his post on August 17, 2014 and the OIG interview on October 6, 2014. 23
Furthermore, Niemann did not communicate the alleged threat to Sky-Eagle in person, by
telephone, computer or any electronic device, written, verbal, text or in the form of instant
messaging etc. Riggs did that. As explained above, the evidence established that Niemann’s
comments were venting, nothing more. Consequently, the charge that Niemann violated the
Workplace Violence Policy cannot be sustained.
Conduct Unbecoming
The Chief sustained the charge that Niemann violated the Houston Fire Department Guidelines –
Rules and Regulation, Volume 1, Reference 1-01, specifically:
5.04 – Conduct and Behavior: Members, whether on or off duty, shall be
governed by the ordinary and reasonable rules of good conduct and behavior of
law abiding citizens.
He also sustained the charge that Niemann violated Rule 13, §6 Causes of Dismissals and
Suspensions, which provides:
No Fireman…shall engage in or be involved in any one of the following acts or conduct
and the same shall constitute cause for…the suspension of a Fireman….
(d) That the employee has violated any of the provisions of the Charter of the City of
Houston or has violated any of the provisions of the Fireman’s Civil Service laws, or the
23

In its brief, the City included another comment allegedly made by Niemann in September and referenced an
exhibit that was ruled inadmissible at the hearing. The Arbitrator did not consider these because they were not part
of the charges against Niemann.

23

 rules and regulations of the Civil Service Commission, or the rules or special orders of
the Fire…Department.
(j) That the employee has been wantonly offensive in conduct or language towards the
public or towards City officials or officers or employees, or shows discourtesy to the
public or to fellow employees while said employee is in the line of duty, and
(k) That the employee has been guilty of conduct unbecoming to an officer or employee
of the City of Houston.
Most of these charges are redundant. There is no evidence to support a finding that Niemann
engaged in “wantonly offensive” 24 conduct towards anyone.
To do so, he must have communicated to the target, communicated having a reasonable
expectation that it would be communicated to the target or believed that his statement would be
acted upon by someone in a manner that would cause offense to the target. Talking among ones
associates in a closed forum does not qualify. He had no reason to believe that one of the forum
members would violate the rules closing the forum and no one acted on his words.
Under the circumstances, the grievance should be sustained.
AWARD
Based on the foregoing, the grievance is SUSTAINED. All references to the discipline or related
documents shall be expunged from Grievant’s record, no further action may be taken against the
grievant related to the discipline, posting or investigation and Grievant shall be made whole for
any and all losses. I will retain jurisdiction over this matter concerning any issue related to
remedy.
SO ORDERED this 10th day of December, 2015.

AlmaLee P. Guttshall

24

Only the “wantonly offensive” provision applies because Niemann was not acting “in the line of duty”.

24