Sunday, November 22, 2015

"Subject to discharge" and progressive discipline

An earlier post ("subject to termination" does not equal automatic terminationnoted a decision of the Sixth Circuit confirming an arbitrator's award reinstating an employee fired for an offense that was "subject to termination" under the cba. The court noted that the arbitrator did not disregard the contract by finding that this language did not compel termination.

The Indiana Court of Appeals has recently reached a similar conclusion.

In  Madison County Board of Commissioners and Madison County Highway Department v. AFSCME Local 3609 the Court refused to set aside an arbitrator's award overturning the termination of two individuals (who happened to be the Union's President and Vice President). The two were dismissed after they were observed allegedly "loafing" on two consecutive days and taking an excessive lunch break on a third.

The applicable cba provided for progressive discipline for minor infractions, but also states that a single major infraction (or a third minor one) made an employee "subject to discharge."

The initial notice of suspension indicated that the employees were being investigated for minor violations. Ultimately, however, the termination notice stated that they had been found to have engaged in the major violations of theft (of time) and falsification of records by claiming to have worked when they were either "loafing" or taking an excessive lunch.

The arbitrator rejected the County's characterization of the offenses as major. He also found that the county had denied the grievants' due process by waiting until after the third incident to take action. Accordingly, he reduced the dismissal to a five day suspension. 

The County sought to set aside the award, but the trial court summarily confirmed it. The county appealed, arguing, inter alia, that the arbitrator's findings on due process improperly modified the cba and that by not upholding the discharges based on each employee's commission of three minor offenses the arbitrator had exceeded his authority.

The Court of Appeals rejected both of these claims. It found the County's position on the due process issue unsupported, finding that the Arbitrator could correctly conclude that the cba requirement that discipline for minor offense be progressive required that County to take disciplinary action promptly. Its failure to do so denied grievants the opportunity to correct their behavior. Moreover, the Court noted:  

[A]s the Union points out, the CBA states that the commission of a third class B minor infraction results in an employee being "Subject to Discharge"; it does not provide for automatic discharge. ... And finally, the CBA does not prohibit an arbitrator from modifying an employee's punishment; it merely prohibits modification of the CBA itself. The arbitrator did not modify the CBA by imposing a lesser punishment than discharge in this case.

The Court accordingly upheld the lower court's decision confirming the award. 

Sunday, November 15, 2015

Desire to avoid overtime is not an "operating need" justifying denial of leave

The cba between the Town of Bethlehem NY and the Bethlehem Police Association provides: 

All members [of the bargaining unit] shall receive five (5) personal leave days annually which shall be scheduled within the unit on the length of service by rank and subject to the reasonable operating needs of the Town.

This provision is implemented by the Department's General Order 58 which defines the circumstances for which such leave is appropriate and requires notice of the need for the leave. 

Because of a severe financial hardship, the City sought  to reduce the amount of overtime. As part of this  effort, the Department began to deny requests for personal leave when granting it would require another officer to work overtime to cover the shift. 

The Union grieved this policy as contrary to the cba, and the dispute was submitted to Arbitrator Louis Kash.

Arbitrator Kash sustained the grievance. While recognizing the City's need to reduce overtime, and its ability to more strictly limit personal leave to the circumstances described in the General Order, he concluded that the desire to avoid overtime was not a sufficient basis to deny leave. He distinguished operating needs, which the contract recognized as a basis for denial, from fiscal needs:

Operating needs are not the same thing as fiscal needs. They are related—the Town needs money to fund its operations—but the two should not be confused. The phrase “operating needs” refers to the internal workings of a department; in the Police Department it refers to things such as staffing and scheduling for three shifts, protocols and methods for policing, facilities and equipment for police, and the like. The phrase “fiscal needs” refers to securing, maximizing, prioritizing and allocating financial resources; it refers to things such as budgets and budget lines, reserves, the sale of bonds and bond ratings. Operating needs are managed by line departments, such as the Police Department; fiscal needs are managed by a central staff department, namely, the finance/budget department (or whatever department has that responsibility). Curtailing overtime is a fiscal, not operating, need of the Town.

Timesunion reports on the dispute Arbitrator: Bethlehem violated police contract by denying personal days and reproduces Arbitrator Kash's award here.

Sunday, November 8, 2015

Just cause, progressive discipline and zero tolerance

These topics are addressed in two recent arbitration awards.

In Minnesota Teamsters Public and Law Enforcement Union, Local No. 320 and ISD #200
Arbitrator James Abelsen overturned the dismissal of a school custodian accused of smoking marijuana on school grounds. Grievant had been working his regular shift and was attempting to unclog a toilet using a plunger and chemicals. After completing that project, grievant stepped outside where he remained for approximately two minutes. When he returned, several other employees reported the smell of marijuana coming from grievant. Grievant denied having smoked marijuana, attributing any smell to the project he had just completed. The School Board conducted an investigation and ultimately terminated his employment. The termination was submitted to arbitration and arbitrator Abelsen found "the only reasonable conclusion ... is that the District clearly established that the Grievant violated School District policy." Nevertheless, he further concluded that the termination was not supported by just cause, observing:

The employer does not have an articulated policy of zero tolerance for violations of this nature, but in fact has a policy which favors a progressive form of discipline for first offenders. Nevertheless, the employer chose the ultimate penalty of termination and offered no reasonable explanation for that decision when a lesser form of discipline was available and provided for in the employer's policy. To discharge the Grievant under these circumstances is unfair and unjust.

A similar result was reached by Arbitrator Timothy Hatfield in Town of Framingham and Massachusetts Laborers' District Council. In that case, the Town terminated the employment of a crossing guard who had called in sick but who was found to be working for a different employer during the same shift. While finding it undisputed that grievant had called in sick and sought to use paid sick time for the time she was working for a different employer, the Arbitrator found termination too severe a penalty. He noted grievant's fifteen year employment history and found termination "not proportional to the offense committed." He rejected the Town's reliance on arbitration awards it claimed supported its case, noting:

These cases are distinguishable, however, as they involve either instances of long-term abuse of worker's compensation, or sick leave abuse where dishonesty and/or sick leave falsification is directly written into the collective bargaining agreement as a terminable offense. Here, in comparison, Section 18.2 of the Personnel Bylaws states that employees who fraudulently report illness to secure sick leave with pay shall be subject to disciplinary measures up to and including discharge. Discharge is not the contractually mandated outcome.

 Arbitrator Hatfield reduced the termination to a ten day suspension.

Sunday, November 1, 2015

Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination

A Sheriff's Deputy for the Sagamon County Sheriff's Department was dismissed for alleged theft of two plants form a City park. That termination was submitted to arbitration. That decision is discussed in an earlier post (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension). Approximately a year after the termination, and before a resolution of her grievance, grievant was accused of retail theft (i.e., shoplifting), and  entered a guilty plea to the charge. Thereafter Arbitrator McGilligan reversed the termination, but upheld instead a 30 day suspension for failure to follow Department policy on abandoned property, and a 60 day suspension for the post termination misconduct. The City challenged the award and the court remanded the dispute for reconsideration using a different  (lower) burden of proof, and found that the Arbitrator  improperly considered the shoplifting issue, which was not before him. In a subsequent award Arbitrator McGilligan again found the termination to be without just cause and again ordered her reinstatement subject to a 30 day suspension for failing to follow the department's policy on abandoned property  .

Grievant was reinstated and immediately put on administrative leave pending a departmental investigation of the retail theft issue. The Department again terminated grievant's employment. That termination was also grieved, and was submitted to Arbitrator Timothy Tobin for resolution.

The Department claimed that grievant was no longer effectively able to carry out her duties as a Deputy Sheriff, and that it "cannot have an officer on the streets attempting to enforce the law when she herself does not even follow the law."

Arbitrator Tobin rejected the Department's discipline. He concluded:

I find that the Employer did not shoulder the burden of proving that the Grievant's discharge on May 20,2015 was for just cause. It is impossible for an employer to discharge a non-employee for just cause.
The discharge cannot be upheld because the Grievant was not an employee on April 24, 2013, the day the retail theft in question was committed. 

He also found that the Department had also improperly considered the earlier claim of theft of plants since the grievant had been acquitted of that charge by a jury.  
IllinoisTimes reports on the decision (Cop-turned-thief ordered back to work) and links to Arbitrator Timon's award here.

Chicago Kent Law Review has a student note by Holly G. Eubanks (Expanding the After-Acquired Evidence Defense to Include Post-Termination Misconduct) discussing the issue of post termination conduct in employment litigation.

Sunday, October 25, 2015

Termination of police officer for Facebook post overturned - City prematurely released information to media

During the disruption following the shooting of Michael Brown in Ferguson, Missouri, a police officer in Elgin, Illinois posted two entries concerning the dispute. The first included a link to a video purporting to show Brown stealing cigarillos from a local store. Under the link to the video the officer wrote "Hmmm ...innocent victim my ass. Did society a favor." A couple of days later the officer posted a second entry. This entry contained a photo of a Missouri State Highway officer with a protester. Both individuals in the photo are making a hand gesture which the officer interpreted as a gang sign. Under the photo he wrote " This is Missouri State Highway Patrol Capt. Ron Johnson. He's also in the Chicago Tribune hugging protesters Just awesome...appears to be the enemy within."

While the officer's settings were set so his posts were visible only to his friends, one of his friends, a Sergeant in the Department, saw the initial post and reported it to superiors in the Department. Grievant was spoken to about the posting, and,while there was a dispute about the content of the conversation, it was undisputed that the officer was told that the posting was inappropriate and as a result of the conversation he removed everything following  "Hmmm...." Grievant removed the second post after he learned that what he believed to be a gang sign was a fraternity gesture.

The City conducted an investigation of the officer's Facebook posts. As part of the investigation it met with community representatives and the investigation received considerable local news coverage. That coverage included references to the Facebook posts and other details of the investigation. Following the investigation the officer's employment was terminated. That termination was grieved, and the dispute submitted to Arbitrator Aaron Wolff for resolution.

Arbitrator Wolff described the issue before him:

Discharge of Elgin police officer with 171/2 years service for two postings on his Facebook account in August 2014, allegedly made in violation of Elgin's Social Media Policy, at the height of the Ferguson, Missouri riots after a white policeman shot and killed an 18 year old black man. 

The Union (Policemen's Benevolent and Protective Association, Unit 54) raised a number of arguments, including a claim that that the City's action violated grievant's First Amendment rights.

Arbitrator Wolff found it unnecessary to reach the First Amendment issue, finding instead that the City's actions, while the investigation was pending, of providing information to the media concerning facts in dispute and copies of the Facebook postings undermined the City's claim of just cause. Arbitrator Wolff concluded:

The above record of expedited release of documents (fn30) several weeks prior to completion of the investigation of [grievant] on September 19 was a clear violation of the City's Police Department rules and regulations and is a bar to finding just cause for the discharge. ...                                      
In light of that finding and conclusion there is no need to decide the First Amendment issue or other issues in this case. It should be noted, however, that both City staff employees and Police Department employees released confidential information to the public while the investigation was pending and, therefore, both violated the Collective Bargaining Agreement ....
fn30 ...An unanswered question in this case is how the media learned of the investigation in order to make any FOIA requests. ...

Nonetheless, Arbitrator Wolff did find cause for a six month suspension for grievant's failure to follow what he found was the direction to grievant to remove posts relating to the Ferguson incidents. While noting that the First Amendment issue remained unresolved, he concluded "Grievant should have followed the golden rule of obeying orders and grieving them later. At that time and manner he could find out if the postings were protected by the First Amendment."

ElginetMedia links to the transcript of the hearings, and Arbitrator Wolff's award at  Elgin Police ordered to rehire officer wrongfully fired!

Sunday, October 18, 2015

Arbitration and public policy- claims of police dishonesty and violence in the workplace

Two recent cases address public policy challenges to arbitrators' awards.

 In  Fraternal Order of Police, Lodge 8 v. City of Cleveland the City sought to vacate an award of Arbitrator Nels Nelson. The award (which can be found here) modified the City's termination of a police Sergeant and the demotion of a Lieutenant and Captain. The discipline was imposed on the three in connection with a pursuit that ended with a fatal shooting. The Captain and Lieutenant were demoted for their alleged supervisory failures, and the sergeant was dismissed for allegedly taking himself out of action during the case and parking along a City street for five minutes.

The Arbitrator limited the demotions of the two senior officers to thirteen months, after which they would be restored to their former positions. As to the dismissed Sergeant, the Arbitrator ordered is reinstatement as a patrolman until July of 2015, at which time he would be restored to his former position as a Sergeant.

The City sought to set aside the award as flawed and, with regard to the reversal of the termination, as contrary to public policy. The lower court rejected these efforts and the City appealed to the Court of Appeals of Ohio.  The Court of Appeals affirmed the lower court's refusal to set aside the award. 

Regarding the public policy claim the Court observed:

In support of its claim, the city relies on Ironton v. Rist, 4th Dist. Lawrence No. 10CA10, 2010-Ohio-5292, wherein an arbitrator reinstated a police officer who had been terminated for falsifying a police report. The trial court vacated the arbitration award on public policy grounds, relying on R.C. 737.11. In upholding the trial court's decision, the Fourth District recognized that Ohio has "a dominant, well-defined public policy against the reinstatement of an officer who falsifies a police report." Id. at ¶ 20. In addition to R.C. 737.11, the Fourth District further relied on Ohio case law recognizing that "honesty is vital to the effective performance of these duties and to ensuring public trust and confidence in the police force." Id. at ¶ 20. 

The court rejected the City's reliance on Rist. It noted that while Arbitrator Nelson found that some discipline was appropriate, he found that the allegation the Sergeant had been dishonest in his report was unfounded. As a result there was no basis for the City's public policy claim and the award was entitled to confirmation.

Reaching a different result, the Connecticut Appellate Court, in Bridgeport Board of Education v. NAGE, LocalRI-200 reversed a lower court and held that an award of the State Board of Mediation and Arbitration was contrary to public policy and should be vacated. The grievant in that case had been dismissed for sending a letter to the City's Director of Labor Relations with copies to the Mayor, the police department and the union. The letter's author identified himself as a school custodian and complained about his treatment by an operations supervisor.  The letter asserted that the supervisor had made untrue statements about grievant and contained detailed descriptions of the mass shootings at Columbine and Virginia Tech, and indicated that if the supervisor "can't control the statements he can't control the out come. If I'm being punished for breaking rules then we all should."

Grievant's employment was terminated for violation of the City's prohibition on violence or the promotion of fighting and  disruptive behavior. 

In ruling on the grievance concerning the dismissal, the Board found the dismissal was without just cause. It converted the dismissal to a ten day suspension and required the referral of grievant to the Company's Employee Assistance Program. 

The City sought to set aside the award, but the Connecticut Superior Court refused (here) observing that to "require that an employee be discharged whenever an act of workplace violence is established, would undermine the arbitration process to which all parties have agreed, as a result of collective bargaining." 

The City appealed, and the Appellate Court reversed. The Court analyzed the case under the test set forth by the Connecticut Supreme Court in Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199 (discussed here). It determined that there was an explicit public policy against violence in the workplace, and noted an Executive Order establishing a zero tolerance policy prohibiting state employees from committing or threatening to commit violent acts in the workplace. The Court also determined that a school custodian's employment involves a vulnerable school population implicating the public safety and public trust, and that "[t]hreats of a mass atrocity against students and educators falls at the very core of the public policies prohibiting workplace violence  ...." Finally the Court determined that a sanction any lesser than dismissal "would send an unacceptable message to the public and other employees that a threat by an employee to commit random shootings in an educational setting is permissible or excusable." 

Sunday, October 11, 2015

"Functus Officio" precludes arbitrator from reconsidering award

An earlier post, "Functus officio" precludes arbitrator from substituting new award for an earlier one, discussed a decision of the District Court in Florida vacating an arbitrator's award as being precluded by the doctrine of "functus officio." The Eleventh Circuit has now affirmed that decision.

CWA filed a grievance against Verizon Florida concerning what it claimed was the improper application of the parties bumping procedures. The relevant contract language provided that an employee could bump if he/she previously held the job into which they sought to bump or if they could perform the job with minimum additional training.

The parties refused to stipulate an issue, and there was apparently some uncertainty concerning the thrust of the grievance, i.e whether it focused on the previously held  provision or the minimal training provision. However the Union's representative described the minimum additional training provision as the crux of the proceeding.

The arbitrator issued a decision finding that most of the grievants would require more than minimal training. However he also found that two of the grievants had previously been 'on loan' to the position in issue and were there eligible to bump under the "previously held" provisio.

The Union sought clarification from the arbitrator concerning two other employees who had also been on loan. The Company challenged the Union's request and also sought reconsideration of the award, claiming that the dispute was limited solely to the question of whether the employees required more than minimal training.

Shortly after receiving the Company's request the Arbitrator issued a new decision eliminating his discussion of the previously held position issue and denying the Union's grievance entirely. As noted in the earlier post, the District Court confirmed the initial award, concluding that it was a final award and that the arbitrator was without authority to issue the second award.

In affirming that decision the Eleventh Circuit concludes: 

The primary question in this labor arbitration appeal is an unusual one: did the arbitrator exceed his power by issuing a substituted award after he determined that he had exceeded his power in the original award? After close review and oral argument, we agree with the district court that he did, and we affirm.

The Court found that the parties' cba incorporated AAA Rule 40 which essentially codified the functus officio doctrine and that, while the arbitrator was persuaded that his initial award was in error, Rule 40  precluded him from issuing the second award.

The Eleventh Circuit's decision can be found here.