Sunday, October 26, 2014

Arbitrator overturns suspension of police officer disciplined for alleged use of excessive force

Arbitrator Michael Cavanaugh, chair of a unanimous three person panel, has sustained a grievance filed on behalf of a Seattle police officer challenging his eight day suspension for claimed use of excessive force.

The incident in question arose during an investigation of an individual believed to have been involved in a hit and run. Grievant was one of two officers who initially stopped the suspect. These two officers were then joined by a third. While inspecting the suspect's vehicle grievant observed what he believed to be a failure of the suspect to comply with the requests of the other officers. Grievant approached the suspect and using a "command voice" (a tactic he had been trained to use) ordered the suspect to "shut your mouth and just sit there." A struggle ensued as the officers attempted to handcuff the suspect, and in the course of the struggle the suspect spit on the officers. Grievant struck the suspect with his forearm and, after the suspect was on the ground, struck him with a closed fist.

A review of grievant's conduct was conducted, and a Sergeant, and acting Lieutenant and a Captain concluded that greivant's actions were reasonable and within policy. The Captain however referred the matter to the Office of Professional Accountability for a "complete and thorough review."

The OPA found grievant's use of force unjustified and unnecessary. It found that he had unnecessarily escalated the situation by injecting himself in an aggressive manner and that his use of force was "premature".

Consistent with the recommendations of the OPA, the Chief suspended grievant for a period of eight days. The Seattle Police Officers' Guild grieved and ultimately arbitrated this discipline.

Initially Arbitrator Cavanaugh addressed the nature of the dispute:

Allegations of excessive force by police officers require consideration of several significant - and often conflicting - public policy and political considerations, each of which is critically important in its own right, e.g. public safety, officer safety, the rights of individual members of the public, and the health of relationships between the SPD and the communities it serves - not to mention the City's compliance with a settlement agreement with the United Sates Department of Justice resulting from claims the SPD has too often used excessive force. 

The Arbitrator noted that just cause for the discipline could be established:

only if facts sufficient sufficient to support the discipline have been established by a preponderance of the evidence in the record, and even then, only if the process used by the City comports with accepted notions of due process and with concepts of equal treatment when considered in light of the discipline imposed on other officers for similar established offenses.

Applying these standards, Arbitrator Cavanaugh concluded that the City had failed to meet its burden. He determined that what the OPA had deemed to be improper escalation was a legitimate, if unsuccessful, attempt to obtain the suspects compliance without the use of force. He also noted that while what the Chief had described as tactical errors had been made, these errors were equally the responsibility of the other officers on the scene and there was no evidence that they had been disciplined. Finally, he concluded that the evidence failed to establish that the blows delivered by grievant were excessive. With regard to the first, he found an absence of evidence that any reasonably available lesser level of force would have been effective in ending the suspect's assault (i.e. the spitting), and with regard to the second, he found that the City had failed to effectively counter grievant's testimony that the suspect was continuing to resist while he was on the ground.

Finding a lack of just cause for the discipline, the Arbitrator ordered the City to remove the suspension from grievant's record and make him whole for lost wages.

The Seattle Times reports on the award Panel overturns suspension of SPD officer in use-of-force case and links to the award of Arbitrator Cavanaugh here.

Sunday, October 19, 2014

Alcohol fueled misconduct found just cause for termination despite rehab

Arbitrator Joseph Duffy has upheld the termination of an Able Bodied Seaman in a dispute between the State of Washington and the Inland Boatmen's Union of the Pacific.

Grievant was employed by the Washington State Department of Transportation, Ferries Division. On April 5, 2013, while he was off duty, grievant drove his personal vehicle on board a ferry operated by the employer. While on board, grievant engaged in conversation with two other employees. According to these employees grievant was intoxicated and made offensive and racially charged comments to both, as well as comments about a passenger. The grievant was also alleged to have engaged in inappropriate physical contact with a female coworker. The coworker testified that grievant thrust his hands between her vest and her shirt, rubbed against her from behind, and placed his face against the back of her neck. During the employer's investigation of this incident grievant claimed he had no recollection of the events in issue, saying he was in an alcoholic blackout at the time. The employer terminated grievant's employment, and the dispute was ultimately submitted to arbitration. At the hearing the Union argued that while grievant's conduct warranted discipline, termination was too severe, and the discipline should be mitigated because of grievant's length of service and his successful participation in an alcohol treatment program.

Initially, Arbitrator Duffy noted that while grievant had been off duty at the time of the incidents, there was a clear connection between the events and grievant's employment, noting that they took place on board a ferry operated by the employer and involved coworkers and, potentially, a passenger. He then considered, and rejected, the Union's mitigation and disparate treatment arguments, observing:
 
     As witnesses at this hearing testified, many people successfully recover from alcoholism, remain sober and lead productive lives thereafter. ... The process of recovery often has a transformative effect on the individual that extends beyond simply stopping drinking. The Grievant described the positive, transformative effect that recovery has had in his life. ... Clearly, the Grievant's conduct in obtaining treatment and continuing in follow up programs is commendable.
     Had this been a case of intoxication in the workplace without the other elements, the outcome would very likely be different. Intoxication, however, does not provide an excuse for serious misconduct of the type engaged in by the Grievant. The mitigating factors of length of service, the lack of prior discipline for similar conduct and the Grievant's commitment to alcoholism treatment are outweighed by the Employer's interest in protecting the integrity and credibility of its equal employment policies and rules. 


As a result, he rejected the Union's grievance.

Arbitrator Duffy's Award can be found here.

Sunday, October 12, 2014

State must adhere to cba despite lack of appropriated funds

The Illinois Appellate Court has upheld an award of Arbitrator Edwin Benn finding the state's refusal to implement a scheduled wage increase to be contrary to the cba. State v. AFSCME Council 31

The cba, as modified by subsequent Cost Sharing Agreements (CSAs), called for the implementation of a 2% wage increase on July 1, 2011. However, citing adverse economic conditions and the absence of sufficient appropriated funds from the General Assembly, the State refused to implement the increase. While the Governor's proposed budget fully funded all collective bargaining agreements, the budget passed by the  General Assembly did not include funds for certain contractual increases.

The Union grieved the refusal to implement the increase, and Arbitrator Benn sustained the grievance, ordering the State to immediately pay the increase (and future increases) and to make whole affected employees. In doing so the Arbitrator rejected the State's argument that he should interpret and apply provisions of the Illinois Public Labor Relations Act and the State Constitution which, it contended, effectively prohibited the State from implementing the increase in the absence of appropriated funds. Noting that his authority was limited to interpreting the parties' contract, the Arbitrator declined to engage in an analysis of the statutory or constitutional limitations. Those issues, he concluded, were more appropriately decided by the courts.

The State sought to set aside the award as contrary to public policy, but the trial court substantially declined. The Appellate Court has now affirmed that decision.

The Court noted that the State's Constitution proscribed laws impairing the obligations of contracts, and that the IPLRA expressly authorized the State to enter into multi-year agreements. The Court concluded that the State's position would render multi-year agreement unenforceable. The Court summarized its holding:

Like the State of Iowa in Iowa Council 61, the State of Illinois here argues that if the General Assembly chooses to appropriate all its funds to specific purposes other than the payments of amounts the State's agents agreed to pay state employees, then the State owes its employees nothing. Such an interpretation of the CBA and the CSAs, as documents that commit the State to nothing, cannot stand. The State's interpretation of the General Assembly's appropriation power would allow the General Assembly in every appropriation bill to impair the State's obligations under its contracts. We adopt the reasoning of the Iowa Supreme Court in Iowa Council 61. The State, through its authorized agents, may commit the State to pay parties who enter into contracts with the State, even before the General Assembly has appropriated funds for the contract. Iowa Council 61, 484 N.W.2d at 394; see also Association of Surrogates & Supreme Court Reporters v. State of New York, 940 F.2d 766, 771 (2d Cir. 1991). If the State seeks to make the contract contingent on appropriation, it must make that contingency explicit in the contract. See Carlstrom v. State, 694 P.2d 1, 4 (Wash. 1985).

Sunday, October 5, 2014

Terminating a past practice

Arbitrator Paul Glendon has found that the City of Toledo breached its agreement with the Toledo Police Patrolman's Association when it unilaterally prohibited officers from engaging in outside employment at any establishment primarily in the business of dispensing alcohol.

The parties' agreement prohibits any employee of the City from accepting employment that is adverse to or in conflict with the employee's employment. Notwithstanding this language, and for in excess of thirty years, officers had been allowed to work outside of (e.g. in parking lots, streets, etc).establishments primarily engaged in dispensing alcohol. The parties referred to this as "projecting." The City, without objection from the Union, did prohibit projecting at  businesses that were the subject of an investigation or prosecution for criminal or liquor license violations.  In March of 2014, however, the Chief issued a Notice prohibiting all such employment. The City maintained the Chief was simply exercising a management right in deciding that any outside employment at such an establishment was adverse to and in conflict with police employment.

In addressing the Union's grievance, Arbitrator Glendon concluded that the ability of officers to work outside of establishments primarily in the business of dispensing alcohol was an established past practice that the City could not unilaterally alter during the contract term. He agreed with the Union that the thirty year practice "met the usual criteria of duration, consistency and mutuality to be a binding past practice clarifying the meaning of the 'adverse to or in conflict with' standard."

 Arbitrator Glendon cautioned that his determination did not mean that the practice could never be terminated, but found that the City had failed to establish a basis for doing so. He noted:

The City could give notice at the end of the contract term that it no longer would recognize it under a successor agreement, thereby making it a subject for bargaining. To justify unilateral termination of the practice during the contract term, however, the City had the burden of proving that circumstances under which it was established and perpetuated no longer existed and that current circumstances are such that it is reasonable to believe any and all  projecting would be adverse to or in conflict with police employment. Absent clear, convincing evidence to that effect, the City's unilateral mid-term prohibition of all projecting would be an arbitrary, unjustified exercise of its "administrative responsibility" recognized in [the cba].

Accordingly he declared the Chief's March notice to be void ab initio and remanded the dispute to the parties for negotiation of the monetary remedy.

The Toledo Blade reports on the decision here, and links to Arbitrator Glendon's Award here.

Sunday, September 28, 2014

Arbitrators improperly adding obligations to parties' contracts

Two recent decisions overturn arbitrators' awards, finding that the arbitrators acted in excess of their authority by adding obligations to the cba or by ignoring its provisions.

Definition of Gross Misconduct

In National Children's Center v. SEIU Local 500 the District Court for DC overturned the award of the Arbitrator, concluding that he had improperly ignored the terms of the cba.  The cba provided that just cause was defined as "NCC's determination that an employee does not meet this high standard [of performance, quality and care], so long as NCC does not exercise its discretion in a manner that is arbitrary, capricious or without foundation ...." NCC had also issued rules, as provided for in the cba, which defined gross misconduct as including removing, without permission, NCC property or the property of another employee.

Grievant had, at the request of an employee who had been dismissed, removed from the facility certain equipment the dismissed employee claimed belonged to her. After grievant informed NCC of what she had done, NCC terminated her employment for claimed violation of the rule.

The arbitrator concluded that grievant's conduct had violated the rule, but that her conduct did not constitute "gross misconduct." The arbitrator determined that NCC had therefore acted arbitrarily and capriciously when it terminated grievant's employment. He ordered grievant's termination reduced to a 30 day suspension.

NCC sought to set aside the award, and the District Court granted the motion. It concluded:

In this case, the arbitrator denied NCC the benefit of the bargained-for terms of its collective bargaining agreement, specifically, NCC's right to distinguish and define "gross misconduct." The arbitrator acknowledged that Section 703.6 fulfilled legitimate management purposes and that [grievant] had no reasonable excuse for her ignorance of the rule. ... Nonetheless, the arbitrator contravened the express terms of the collective bargaining agreement by finding that [grievant's] conduct "d[id] not rise to the level of gross misconduct." .... The collective bargaining agreement reserved to NCC the discretion to craft workplace rules and define "gross misconduct." See 2011 Collective Bargaining Agreement at 25. The arbitrator therefore ruled in contravention of the collective bargaining agreement by "substitut[ing] his [own] judgment or discretion for NCC's judgment or discretion." ...

 The court found that rather than interpreting the cba, the Arbitrator had substituted his judgment for "the clear management rights provided in the collective bargaining agreement."

The court therefore remanded the dispute to the arbitrator for a determination of whether NCC acted in an arbitrary and capricious manner when it fired grievant for what the rule defined as gross misconduct.

Implied terms of the cba


In County of Lebanon v. AFSCME District Council 89, Local Union 2832, the Commonwealth Court of Pennsylvania affirmed a lower court's refusal to confirm an award of Arbitrator Jane Rigler that had ordered the County to rescind the contracting out of a nursing homes' dietary department.

The contract between the County and the Union provides that "[i]n the event the [County] sells, leases, transfers or assigns any of its facilities" it is obligated to attempt to place the affected employees with the new employer and to provide thirty day notice to the Union. The Arbitrator concluded that this provision was applicable to the contracting of the dietary department, but that while the contract imposed no explicit prohibition on contracting out the work, an implied obligation of good faith and fair dealing barred the County from doing so without first  "fully and fairly dealing with the Union." The Arbitrator ordered the County to resume operation of the department and offer reemployment to all affected employees.

The County sought to set aside the award, and the Court of Common Pleas agreed. The Union appealed, and the Commonwealth Court has now affirmed.

In rejecting the Arbitrator's finding of an "implied obligation" the Court observed:

Notably, the Arbitrator ... found that the CBA "impose[d] no explicit constraint on the County's ability to contract out Cedar Haven, dietary services, work."... The Arbitrator then concluded that because the Article was silent as to the circumstances, the Article was also silent as to the County's pre-transfer obligations to the Union, and that such pre-transfer obligations should include participation by the Union in the decision-making process. Such a conclusion, however, is contrary to the plain language of Article XXXIII, which expressly lays out the County's dual pre-transfer obligations to the Union: (1) attempted placement of employees and (2) at least thirty days' notice. The arbitrator may not have liked the terms, or thought they offered the Union insufficient protection, but she was "confined to interpretation and application" of the CBA and was not free to "dispense [her] own brand of industrial justice." ... The Arbitrator, in other words, "was obliged to apply the agreement as written, without imposing additional terms that modify and limit what the parties expressed."

Concluding that the Arbitrator's decision attempted to impose duties that were not provided for in the cba, the Court affirmed the lower court's refusal to enforce the award. 

Sunday, September 21, 2014

Employer not obligated to extend grievance settlement to different unit

A Steelworkers Local represents a unit of production and maintenance employees at 3M's Cottage Grove, Minnesota facility. IUOE Local 70 represents a combined unit consisting of certain employees at Cottage Grove as well as employees at another 3M facility in St. Paul.  Until April of 2010 employees represented by both unions at Cottage Grove were covered by a common Attendance Control Program. After that date, 3M introduced a separate program for Local 70, though the terms were essentially the same.

In January of 2012, 3M and Local 70 settled a grievance concerning the program. Pursuant to the agreement, after a transition period employees represented by Local 70 would not be charged with an occurrence under the Attendance Control Program for sick leave absences.

In May of 2013, an employee represented by the Steelworkers was suspended for three days under the Attendance Control Program for a sick leave absence. The Steelworkers filed a grievance, asserting that it was "unfair and discriminatory" not to give grievant the same relief the employees represented by Local 70 had received. The Steelworkers claimed the circumstances were identical to those present in the grievance settled by 3M and Local 70. The parties were unable to resolve their dispute in the grievance procedure and the Union submitted the dispute to Arbitrator Thomas Gallagher for resolution.

Arbitrator Gallagher denied the grievance. He noted initially that at the time it negotiated it most recent cba the Steelworkers did not attempt to negotiate modification of the Attendance Control Plan to achieve the result it sought, even though it was aware of the IUOE settlement at that time. Noting that Steelworkers were now attempting to modify their agreement by means of a favorable award in the arbitration, the Arbitrator concluded "Contract amendment is not within the authority of a grievance arbitrator; it should occur only in the give and take of bargaining." The arbitrator also observed that 3M had presented evidence that the nature of the workforce represented by the two unions was different, and that the Company could tolerate greater absence among the IUOE employees. He concluded:

          That difference in the need for attendance is at least sufficient to show that the issue should not be resolved by an arbitrator's determination that relevant circumstances affecting both employee groups are identical.
          Rather, the interests of the parties should be resolved in bargaining. The bargaining process is better suited than arbitration to resolution of this kind of issue -- 1) because arguments of the Union in favor of uniform treatment of both employee groups may be able to lessen the Employer's concerns about maintaining production efficiency, 2) because arguments of the Employer may persuade the Union that good attendance will enhance production sufficiently to allow economic benefits, or 3) because the parties will find some other resolution in the give and take of bargaining. 

Arbitrator Gallagher's Award can be found here.


Sunday, September 14, 2014

Weingarten and criminal investigations of employees

This is a subject addressed in two recent cases.

In Prince George's County v. Prince George's County Police Civilian Employees Association the Maryland Court of Special Appeals considered whether it was a violation of public policy for an arbitrator to conclude that the the County was obligated to inform an employee of his right to union representation "during an investigatory interview, when his  employer was conducting a criminal investigation."

Grievant, a civilian employee of the police department,was initially requested to meet with the Department's Criminal Investigation Division for an interview in connection with the investigation of a missing weapon. As that investigation progressed, Grievant was also asked about allegations he had impersonated a police officer, had engaged in the unauthorized use of the police radio while operating one of the Department's undercover vehicles, and improperly activated emergency equipment. A referral was made to the Department's Internal Affairs Division which ultimately issued a recommendation that greivant's employment be terminated. The recommendation was followed, and the Union pursued a grievance to arbitration over the discipline.

The arbitrator upheld the grievance on several grounds, one of which was that the Department had denied grievant his Weingarten rights during the interview.The Department sought to set aside the award, arguing that it violated public policy when it determined that grievant was entitled to a union representative during  a criminal investigation. The lower court confirmed the award, but the Court of Appeals reversed. Adopting reasoning similar to that adopted by courts in Illinois and New York, the Court concluded: 

As in Illinois State Police and City of New York, the arbitrator's award here and the circuit court's decision to uphold the arbitrator's award constrains the ability of the County's police department to conduct criminal investigations and interrogations of their union members. 
***
The serious crime of theft of a police officer's service weapon and impersonating a police officer cannot give way to an employee's Weingarten rights. To do so, as held by our sister jurisdictions, would interfere with the police department's ability to investigate crimes and violate the public policy of effective law enforcement. The public safety exception applies to this case because [Grievant] was being interrogated about several crimes by his police department employer rather than merely an employment issue and we thus reverse the decision of the circuit court affirming the arbitrator's decision.

Because it could not determine whether the Arbitrator would have overturned the termination on other grounds alone, it  vacated the award and remanded the dispute to a new arbitrator.


In contrast, the New Jersey Appellate Division, in  New Jersey Transit Bus Operations, Inc. v. ATU New Jersey State Council, affirmed a decision of the Public Employment Relations Commission (PERC) that denied a request by N.J. Transit to restrain arbitration of a claim that it had denied an employee his Weingarten rights during what the employer claimed was a criminal investigation by its internal police department.

Grievant had been dismissed for allegedly taking money from a fare box of a NJ Transit bus. He was interviewed at the worksite by officers of the NJ Transit Police Department. The Union claimed he was denied union representation during that interview. The employer filed a scope of negotiations petition seeking a determination that the Union could not rely on the alleged denial of union representation to exclude admissions made during the interview.

PERC rejected this request, and the Appellate Division affirmed. It quoted with approval the following excerpt from PERC's decision:

We reject NJT's argument that Weingarten rights never apply to interviews conducted by NJTPD because to allow such representation would frustrate the effectiveness of criminal interviews. While NJT asserts that NJTPD is akin to a municipal or State police force, NJTPD's jurisdiction is limited to "police and security responsibilities over all locations and services owned, operated, or managed by the [NJT] corporation and its subsidiaries." N.J.S.A. 27:25-15.1(a). The nature of the investigatory interview may have been criminal, but it resulted in an administrative termination of the employee's job. An investigatory interview conducted by the police arm of a public employer, as opposed to the public employer itself, is not, standing alone, a ground to render Weingarten protections inapplicable. In re Carroll, 339 N.J. Super. 429 (App. Div. 2001) (even though sheriff's officer was granted use immunity during an internal criminal investigation interview, he should have been allowed to consult with attorney and union representative); see also Dep't of Human Services, P.E.R.C. No. 89-16, 14 NJPER 563 (¶19236 1998) (finding a violation of the New Jersey Employer-Employee Relations Act when an employee interviewed by Human Services police was denied union representation where the employee had a reasonable basis to believe the information gathered at the interview was available for purposes of administrative discipline); see also U.S. Postal Service, 241 N.L.R.B. 141, 100 LRRM 1520 (1979) (finding that an employee interviewed by Postal Service inspectors and ultimately disciplined based on evidence obtained as a result of the criminal investigation was entitled to union representation).