Sunday, May 1, 2016

MD Court: Arbitrator exceeded his authority when he relied on a cba provision the County was not authorized to negotiate

Prince George's County, MD and the Prince George's County Police Civilian Employees Association were parties to a cba that included  language providing that covered employees were entitled to a notice of their eligibility to have a Union representative present prior to an investigatory interview.

Grievant was the subject of both a criminal investigation regarding alleged crimes and an internal affairs investigation concerning workplace conduct. Grievant was interviewed by employees of the Department's Criminal Investigations Division concerning the alleged crimes, and separately by the Department's Internal Affair's Division concerning workplace issues. Grievant was provided the requisite notice concerning the Internal Affairs investigation but not for the CID interview. Grievant's employment was ultimately terminated. An arbitrator overturned the dismissal, concluding in part that the failure to provide notice of grievant's eligibility for the presence of a Union representative during the CID investigation violated the cba and undermined the County's claim of just cause

The City sought to set aside the award, arguing, inter alia, that the award was against public policy. The Court of Special Appeals granted the County's request, concluding (in an opinion discussed in Weingarten and criminal investigations of employees) that the award was contrary to an explicit , dominant, and well-defined public policy of effective law enforcement. The Union appealed, and the Maryland Court of Appeals has now affirmed, but on different grounds. The Court described the issue before it as:

whether a county has the authority under the county's code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county's police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

Concluding that the County had no such authority, the Court went on to decide that the arbitrator had therefore exceeded his authority by relying on a provision of the cba that was beyond the County's authority to enter into. It noted: 

In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator's authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that PGCC § 13A-109(a) does not confer upon the County the authority to enter into a collective bargaining agreement requiring that a police civilian employee be advised of a right to have a union representative present before a criminal investigative interview by the Prince George's County Police Department.

In light of this conclusion the Court found it unnecessary to decide the public policy question addressed by the Court of Special Appeals.

The Court's opinion in Prince George's County Police Civilian Employees Association v. Prince George's County, Maryland can be found here.

Sunday, April 24, 2016

Another unsuccessful public policy challenge to an arbitrator's award

The City of Cleveland terminated the employment of a police officer for her essentially undisputed actions of stabbing a romantic partner.

 Grievant had been dating and, for a time, living with the partner. He had a criminal history of convictions for a number of offenses including drug possession, sexual battery, attempted kidnapping and  gross sexual imposition. On March 12, 2012 the two engaged in an argument and grievant, while intoxicated, stabbed the partner several times and fled the scene. She was found in her vehicle with a cord that was suspended from the ceiling of the car wrapped around her neck. Grievant was arrested and charged with felonious assault. She was subsequently charged with a reduced offense and sentenced to county jail for six months. The sentence was suspended but her employment was terminated.

In an award (discussed here) Arbitrator Paul Gerhart ordered her reinstatement. He concluded that while grievant had engaged in "particularly egregious" conduct the temination was not for just cause. Arbitrator Gerhart relied on evidence that other officers who had engaged in arguably similar behavior had not been terminated and found that this evidence of disparate treatment undermined the City's case. He noted also a number of mitigating factors and reinstated her (without back pay) subject to her refraining from alcohol  and her compliance with any requirements imposed by the City's Employee Assistance Program.

The City sought to set aside the award but the trial court refused to do so. The Court of Appeals of Ohio has now affirmed that decision and upheld the award. City of Cleveland v. Cleveland Police Patrolmen's Association. The City claimed that the award was contrary to public policy, a claim that the Court quickly rejected. The Court observed that the City had failed to state a well defined public policy argument and noted:

The arbitrator acted within his discretion, and the City did not effectively argue how his decision is in conflict with public policy. The City only argues that the public should be able to have the confidence in police officers and that officers should hold themselves to the highest ethical standard. However, there are many cases where police officers have not held themselves to such a high standard, and yet they were not terminated from their jobs. 

The Court also rejected the City's claims that the arbitrator improperly required it to use progressive discipline and did not issue a "final" award because he essentially deferred to the City's Employee Assistance Program to decide what, if any, continuing counseling was appropriate.

Sunday, April 3, 2016

Public policy challenges to arbitration awards - three recent cases

Award ordering compliance with wage increase in the absence of appropriation contrary to public policy

The Illinois Supreme Court has overturned lower court decisions and vacated an award of Arbitrator Edwin Benn. Arbitrator Benn upheld a grievance, finding that the State of Illinois had breached its cba with AFSCME Council 31 by refusing to implement a 2% wage increase called for in a multi-year cba. The State claimed that it could not implement the raise because the legislature had not appropriated funds. 


In his award Arbitrator Benn found that the Union was contractually entitled to the increase. He rejected the State's reliance on language of Section 21 of the IPLRA, concluding that interpretation of a statute not incorporated in the cba was beyond his authority as an arbitrator.


The State challenged the award but both the trial court and the appellate court refused to vacate it. (State must adhere to cba despite lack of appropriated funds.)


On the State's appeal the Supreme Court reversed and vacated the award. State v. American Federation of State, County and Municipal Employees, Council 31. The Court concluded: 


... we hold that section 21 of the Act, when considered in light of the appropriations clause, evinces a well-defined and dominant public policy under which multiyear collective bargaining agreements are subject to the appropriation power of the State, a power which may only be exercised by the General Assembly. We further hold that the arbitrator's award, which ordered immediate payment of the 2% wage increase without regard to the existence of corresponding appropriations by the General Assembly, violated this public policy. Accordingly, we reverse the judgments of the appellate court and circuit court, and vacate the arbitration award.


Award overturning termination of employee accused of mistreating special needs student not contrary to public policy



Grievant was employed as a special education aide, assigned to work with a student with Down's syndrome. In March of 2011 grievant was responsible for getting the late arriving student to his classroom. As she was walking the student to the classroom he dropped to the floor and refused to enter. Grievant pulled the child approximately 20 feet in to the classroom.  Other employees present, made no effort to intervene. After receiving a report of the incident the principal met with grievant who apologized and expressed remorse. Grievant was allowed to return to care for the child. Subsequently grievant was placed on unpaid leave and the employer ultimately recommended her termination. 

Arbitrator Margaret Brogan found termination excessive. The arbitrator concluded that grievant had not acted in anger,  was a long term employee without discipline, and that  grievant had been forthcoming and remorseful. Arbitrator Brogan converted the termination to a five day suspension.

The School District sought to have the award vacated, arguing, inter alia, that it was contrary to the public policy calling for protection of students from violence on school property. The court refused the Board's request, and now the Commonwealth Court of Pennsylvania has affirmed. Rose Tree Secretaries & Ed. Support Personnel Ass'n v. Rose Tree Media School District. The Court observed:

Employer's public policy argument lacks merit. Arbitrator found Grievant's version of the incident more credible than that offered by Employer. Although Arbitrator found Grievant's actions, in pulling Student, to be unacceptable, Arbitrator did not find those actions motivated by anger or intent to harm. In addition, Arbitrator did not find that Grievant's conduct harmed or abused Student, or violated school laws. ...  As such, Arbitrator essentially determined Grievant did not violate any well-defined or dominant public policy involving school violence.
***
In the present case, Arbitrator determined a 5-day suspension was sufficient to ensure that Grievant, a 10-year employee with a prior unblemished record, would not repeat her misconduct. Arbitrator observed that Principal instructed Grievant as to alternative strategies if a similar incident should occur. Also, Arbitrator specifically found that the corrective discipline imposed would most likely change Grievant's behavior, and that she would be able to effectively care for children going forward.

 Public policy does not compel termination of employee for single act of  sexual harassment

Grievant was a twenty-two year employee of the City of Springfield, Mass. He had signifiant physical and mental health problems, including cerebral palsy, epilepsy, and depression. He was also evaluated as having a "mildly impaired" IQ. He was accused of having  engaged in a single act of inappropriate behavior involving another employee and his employment was terminated. An arbitrator found that the grievant had engaged in the conduct alleged, but concluded that termination was too severe a penalty and that he had been subjected to disparate treatment. The arbitrator ordered his reinstatement without loss of pay.

The City sought to set aside the award, arguing that the award effectively precluded it from taking the remedial action required by state and federal law and that the award violated public policy. The Superior Court confirmed the award, and the Mass. Appeals Court has now affirmed. City of Springfield vs. United Public Service Employees Union. The Court concluded:

[Grievant's] conduct here, as found by the arbitrator, did not require dismissal because a lesser sanction, progressive discipline, would not violate public policy. In light of her findings regarding his significant mental and physical limitations, his pliant demeanor, and his twenty-two year problem-free work history,  [Grievant's] misconduct, despite its severity, did not require termination. It was within the arbitrator's ample authority to conclude that these factors made progressive discipline rather than termination an appropriate remedy. 

A somewhat similar dispute, reaching a contrary result on different facts, is discussed at Connecticut Supreme Court: Egregious sexual harassment compels termination, arbitrator's contrary award set aside

Sunday, March 27, 2016

"No-add" language in cba doesn't prevent arbitrator from modifying contract

Can an arbitrator rewrite a contract to reflect the original intent of the parties despite language prohibiting the arbitrator from adding to or modifying the agreement? Arbitrator Michael Rapport said yes, and the District Court in Arizona has now confirmed that award. 


The cba between Asarco and the Steelworkers called for the payment of a Copper Price Bonus to unit employees on a quarterly basis, computed relative to the current price of copper. The agreement limited eligibility to employees accruing credit under the pension plan at the end of the calendar quarter.

In negotiation for a successor contract in 2011, the Company proposed that new employees would not be covered by the pension plan. It was undisputed, however, that there was no discussion of the impact of that proposal on the eligibility of new employees for the Copper Price Bonus or the link between pension eligibility and  eligibility for the bonus plan. The new agreement, with the Company's language on elimination of pension eligibility for new employees, was ultimately agreed to by the Union and ratified by the members.

After agreement was reached, one of the Company's HR representatives asked the Company's Director of Labor Relations about the impact of the pension language on bonus eligibility, explaining that as he read the language new employees were no longer eligible. The Director responded that "we have an issue here" and that this was new information for him. It was also undisputed that for several months after the new agreement became effective new employees were told that they would be eligible for the bonus.

As the time for payment arrived, the Company notified  the Union that it would not be paying the bonus to new employees. It maintained that the express language of the agreement rendered ineligible new employees not participating in the pension plan. The Union grieved the Company's decision and the dispute was submitted to Arbitrator Rappaport for resolution.

The Arbitrator issued an award upholding the grievance. He noted that while no contract language supported the Union's position, the doctrine of mutual mistake applied and warranted reformation of the contract. He found that neither party anticipated the impact of the elimination of pension eligibility on eligibility for the bonus payment. He rejected the Company's argument that language in the cba that withheld from the arbitrator "jurisdiction or authority to add to, detract from or alter in any way the provisions of [the] Agreement" prevented him from reaching such a conclusion. He observed:

What all this means is that the ultimate issue in this case is whether the Union met its heavy burden of showing that there was a mutual mistake made by the parties in negotiating and adopting the July 1, 2011 MOA. In situations of that kind, it has been recognized by numerous, but not all, arbitrators and other authorities that in the interests of justice and fairness, the arbitrator can rewrite a contract to correct what appears to be an obvious mutual mistake.

Accordingly the Arbitrator modified the cba to explicitly include eligibility of new employees for the Copper Price Bonus.


Asarco sought to set aside Arbitrator Rapport's award, arguing that he had exceeded his authority and that he had ignored the "no-add" provision of the cba. The Court summarized Asarco's claim:

 ASARCO argues that the Arbitrator exceeded the express jurisdiction and authority granted to him by the parties and dispensed his own brand of industrial justice by issuing an award that fails to draw its essence from the BLA [Basic Labor Agreement]  because it expressly violates the BLA. ... Citing United Food & Comm'l Workers Union, Local 1119, AFL-CIO v. United Markets, Inc.784 F.2d 1413, 1415 (9th Cir. 1986), ASARCO contends that if "the arbitrator's interpretation [of the collective bargaining agreement] violates the terms of the agreement, the court cannot enforce the award." (Doc. 1 at 11.) According to ASARCO, the award must be vacated because the Arbitrator added a new five-line term to the BLA, despite the BLA's express language stating that the Arbitrator did not have authority to vary the terms of the agreement.

Rejecting this claim, the District Court concluded :

The Court finds that the "no-add" provision did not close the door on the Arbitrator's authority to fashion relief when the undisputed facts revealed mutual mistake by the parties. The Arbitrator's reformation of the collective bargaining agreement only corrected the defect in the written document so that it reflected the true terms of the parties' agreement. The Arbitrator did not exceed his authority by applying ordinary principles of mutual mistake and reformation in the context of the "no-add" provision of the BLA.

The Court accordingly denied Asarco's request to vacate the award and granted the Union's request that the award be confirmed. The Court's decision can be found here.


A similar resolution is discussed at Correcting mutual mistake is not the same as modifying the contract

Sunday, March 13, 2016

Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer

Grievant was employed by the City of Chaska, Minnesota as a police officer. He had held that position for approximately 14 years with no significant discipline.

 In May of 2014 grievant was rotated to the day shift. In an effort to get out of what he described as a "funk" and improve his statistics for actively enforcing traffic laws, grievant began using stationary patrols as his primary method of traffic enforcement. This involved grievant parking at a location and looking for traffic violations. The use of stationary patrols was neither encouraged nor discouraged by the Department.

While engaging in these patrols grievant would randomly enter plate numbers of nearby vehicles to check for outstanding warrants and for individuals driving with a suspended or revoked license. This was a common method utilized by officers in the Department. Among the locations of grievants stationary patrols were the entrances and exits of two mobile home parks. Many of the residents of the mobile home parks were Hispanic and a number of residents were undocumented individuals who did not have drivers licenses. Per policy, if a plate check showed that the registered owner of a vehicle did not have a license, and if the driver generally matched the gender and age of the registered owner, it was appropriate to pull over the driver. Grievant continued to engage in these stationary patrols and, on a number of occasions, pulled over and issued citations to individuals who did not match the gender/age of the registered owner. Grievant's activities engendered a number of complaints to the Department alleging grievant was targeting Hispanics, and the Department instructed grievant to cease the stationary patrol at those locations. Grievant was upset at this directive but complied. Grievant was subsequently instructed to cease running random license plates and to cease arresting drivers for not having a license without the approval of a supervisor. In discussions with his supervisors concerning this directive grievant was alleged to have stated " I am personally responsible for sending over 100 illegal immigrants back to Mexico." Grievant denied making this statement. The Department thereafter arranged for an independent investigation of grievant's stops, and in April of 2015 terminated grievant's employment  asserting that he had "engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic/Latino drivers..." and that he had "provided untruthful answers during your interview ...."

The City's action was grieved and ultimately presented to Arbitrator Richard John Miller for resolution.

Arbitrator Miller rejected the grievance and upheld the termination.

Initially Arbitrator Miller addressed the question of burden of proof. Rejecting any effort to categorize the appropriate burden, the Arbitrator observed:


"Burden" and "quantum" of proof are two of the most involved aspects of the rules of evidence, which ordinarily are eschewed by arbitrators as being so complicated, theoretical and technical that they are unsuitable for such a relatively informal process. Consequently, rather than assigning to this case a quantum of required proof, such as proof beyond a reasonable doubt, preponderance of the evidence, clear and convincing evidence, or evidence sufficient to convince a reasonable mind of guilt, a better and more realistic approach to take is a determination of whether the Grievant is guilty of the appearance of and racial profiling by his patrol activity in the targeting of Hispanic drivers and, if so, was his misconduct the type serious enough to justify his discharge.

Applying this test, Arbitrator Miller concluded that the City had established the charges alleged. He found:

The Grievant asserts that his stationary patrol activity at the entrances and exits of the mobile home parks targeted traffic violations and not a specific class of people. However, that assertion is refuted by the evidence showing that the Grievant relied on racial and ethnic stereotypes as factors in selecting where to engage in stationary patrol and whom to stop and search. When the Grievant conducted stationary patrol at the entrances and exits of two mobile home parks widely known to have predominantly Hispanic residents, versus conducting stationary patrol on Highway 41 where the race of drivers could not be reasonably anticipated, his patrol activity effectively focused on racial and/or ethnic stereotypes as factors in his stops of Hispanic drivers since he associated no DL violations with Hispanics.

In light of this conclusion, the Arbitrator determined:

The Grievant engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic drivers in violation of CPD General Orders and the state statute. His conduct brought discredit to himself and the CPD and detracted from the respect and confidence of the community that is essential to law enforcement effectiveness.

 The Arbitrator also found that the evidence supported the City's claim that grievant had been untruthful, and that this provided an additional basis for the City's actions, noting:

A Police Officer is "granted special powers" and is held out as someone "the public can trust." City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 636 N.W.2d , 244 (Minn. Ct App. 2001), rev. denied (Dec. 11, 2001). Police Officers are held to a higher standard of conduct than other public employees. This stems in part from the oath that Police Officers take to protect the public they serve. The public entrusts the safety and security of lives and property to the protection of Police Officers. In turn, Police Officers are expected to conduct themselves in an exemplary manner adhering to the regulations promulgated by the CPD. The CPD badge and uniform worn by all Police Officers are symbols of the public's faith and trust, and Officers must conduct themselves in such a manner to be a role model to all citizens by adhering to the CPD General Orders and the state statute.

Accordingly Arbitrator Miller deemed the City's action's supported by just cause and therefore denied the grievance. The Arbitrator's award can be found here.



Sunday, February 21, 2016

February Quick Hits

USM followed contract in layoff of faculty

Arbitrator Mark Irvings largely rejected a grievance filed by the Associated Faculties of the Universities of Maine  challenging the University's "retrenchment" (layoff) of faculty at USM resulting from economic pressures. While the Union challenged the need for layoffs, and offered its own analysis of the financial health of the system, Arbitrator Mark Irvings concluded that the University acted "for bona fide financial or program reasons" within the meaning of the cba. 
The Portland Press Herald reports on the decision USM followed contract when it laid off faculty members in 2014, arbitrator rules and links to a redacted copy of the award here. 

Court: Arbitrator did not ignore last chance agreement, upholds award

The US District Court for the Southern District has refused to overturn an award of Arbitrator Robert Simmelkjaer.  UNITE HERE Local 100 v. Westchester Hills Golf Club, Inc. Arbitrator Simmelkjaer sustained the grievance filed behalf of a bartender who had been dismissed. In 2010 Arbitrator Susan Mackenzie reinstated grievant following his termination for insubordination but imposed a last chance condition. Separately, the Golf Club entered into a last chance agreement with grievant in settlement of a dispute about a proposed termination in 201. In 2013 grievant was working as a bartender at a bereavement lunch. A participant complained about his behavior and the Club again terminated his employment. Arbitrator Simmelkjaer found that the Club had not established that grievant engaged in the conduct alleged. Additionally, he concluded that the last chance agreement entered into in 2011 was unenforceable because the Union was not a party to the agreement. He rejected the Club's claim that, since grievant was a shop steward, further participation by the Union was unnecessary. The Court concluded that the Arbitrator acted within the scope of his authority and his award was entitled to confirmation. (A similar issue is addressed in Last chance agreement doesn't bar arbitration when union is not a party)

City to appeal order confirming award reinstating police officer

Arbitrator Mark Reed sustained a grievance filed on behalf of a Guthrie, Oklahoma police officer dismissed for his actions in arresting his wife's ex-husband. Arbitrator Reed's award can be found here. The Arbitrator concluded that grievant's conduct warranted severe discipline but that an unfair investigation and grievant's length of service supported mitigation of the penalty. The City unsuccessfully sought to set aside the award, and it has now indicated its intent to appeal that decision. City Council appeals judge ruling that former Guthrie police officer should be reinstated.

Police discipline 

A column in the San Antonio Express News reviews the arbitration award that reinstated an officer involved in the fatal shooting of his girlfriend's ex-boyfriend and asserts Union undermines police chief in appeal process. The article links to the award of Arbitrator LeRoy Bartman here.

The issue of police discipline is the subject of news articles in Texas (Police disciplinary process questioned by McManus), Massachusetts (Discipline for Boston police officers frequently overturned Arbitrators rule in favor of officers three out of four times),  New York (Schenectady to appeal police discipline case to state's highest court) and California (How San Jose cop fired for combative Black Lives Matter tweets got his job back).

Court confirms award upholding termination of oboist

The District Court for the Western District of New York has rejected an effort to overturn an award of Arbitrator Robert Rabin upholding a termination. Grievant was an oboist with the Boston Philharmonic. The Court rejected the unsuccessful grievant's challenges to the arbitrator's evidentiary rulings, and declined the grievant's invitation to find a violation of public policy in the award. The Court denied grievant's claim that an award upholding a termination was contrary to public policy "because his profession as an oboist is extremely limited in terms of job opportunities."  The court's decision in Roy v. Buffalo Philharmonic Society, Inc. can be found here.

Sunday, January 10, 2016

Court rejects public policy challenge to arbitrator's reinstatement of teacher accused of inappropriate touching


A music teacher employed by the Franklin [PA] Regional School District was accused  of inappropriately touching a student. The school conducted an investigation and ultimately charged the teacher with "immorality, incompetency and willful violation of school laws" and terminated his employment. The school, as required by law, also reported the allegation to the local police department and the County's Children's Bureau. Both of those organizations investigated and found no basis to prosecute or proceed further.

After a hearing, an arbitrator found that the school district had failed to establish that the teacher had engaged in any inappropriate touching, finding the allegation unfounded and unsupported by the facts. He found further that the conduct that grievant acknowledged engaging in, "snake biting" (squeezing a child's knee between his thumb and forefinger) and "good mannered threats to use a slapstick for discipline," did not support termination. 

The School District sought to set aside the award, asserting that it was contrary to public policy. The Common Pleas court agreed, in part, finding that the conduct the teacher acknowledged having engaged in violated school district policy and  that the award was "not in accord with established public policy of protecting students from impermissible touching by their teachers." As a result, the Common Pleas court modified the arbitrator's unconditional reinstatement and ordered instead a  prospective, and conditional, reinstatement. 

Both the School Board and the Union appealed, and the Commonwealth Court has now reversed that decision. Reaffirming that in reviewing an award of an arbitrator the court is bound by the arbitrator's factual findings, the Court concluded:

 common pleas improperly viewed the situation through another lens and usurped the arbitrator's fact-findings. .... the District acknowledged that [grievant's] conduct was not sexual in nature and that no criminal charges were pursued. We conclude, therefore, that the arbitration award does not pose an unacceptable risk of causing the District to flout its legal obligations and public duty. Accordingly, not only did the District fail to satisfy the narrow public policy exception, but the court also erred in modifying the bargained-for award.

The Commonwealth Court also rejected the School District's challenge to the arbitrator's use of a "beyond a reasonable doubt" standard of proof, noting:

 The arbitrator chose to use that standard in light of the fact that a discharge was at issue, involving, inter alia, an immediate loss of income, a blemish on an employee's record and potential difficulty in securing subsequent employment. In determining that the District did not prove the allegations pursuant to that standard of proof, however, the arbitrator noted that he would have rendered the same decision had he used the preponderance of evidence standard. In any event, the arbitrator has some discretion in choosing a standard of review. See Elkouri and Elkouri, How Arbitration Works, Chapter 15, Section 3(D)(ii)(a) at 15-24, 15-27 (7th ed. 2012) (acknowledgement that many arbitrators apply higher standards of proof in cases involving stigmatizing behavior). Accordingly, the District's argument is without merit.

The Court's opinion in Franklin Regional School District v. Franklin Regional Education Association can be found here.  An earlier decision of the Commonwealth Court upholding a public policy challenge to the reinstatement of a teacher found to have engaged in improper contact is discussed here.