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). 

Sunday, September 7, 2014

Correctional Officer Arbitration Awards

Several awards involving correctional officers have been in the news recently.

Correctional Officers Scheduling 

In State of Alaska and Alaska Corrections Officers Association, Arbitrator Kathy Fragnoli sustained a contract interpretation grievance involving the scheduling of vacations. She concluded that the Sheriff had violated the parties' cba by unilaterally imposing a leave restriction of 84 hour at a time. Most Correctional Officers worked schedules of seven twelve hour days followed by seven days off. The contract provided that leave selection should be based on seniority. Previously the CO's had selected vacations in one week increments using a round robin system. The Sheriff, claiming that this resulted in inequities and deprived junior employees the ability to schedule vacation in desirable times, imposed a limitation of one week of leave per month (which, when combined with days off resulted in three weeks off.) The State defended this restriction, claiming it was privileged by the management rights provision of the cba. Arbitrator Fragnoli rejected this claim, and rejected the State's argument that the restriction was necessary to equalize vacation opportunities, noting:

The other justification offered by the State—the equalization of vacation opportunities among
COs of varying seniority—is not a legitimate reason to restrict leave because it also violates the
contract. Article 20.1.E specifically states that leave selection is based on seniority. It is thus
clearly the intent of the parties ... that vacation leave be distributed based on seniority. The evidence indicated that the parties have utilized methods of leave selection (namely, the round robin) that achieve some level of equalization; any other unilateral attempts by the Department to undercut seniority as the primary basis for allotting scheduled leave violate Article 20.1.E.

The Arbitrator also rejected the State's reliance on the zipper clause of the cba, observing

Zipper clauses are construed very narrowly and clearly do not remove the need to bargain when an employer implements a new policy that directly contravenes bargained-for conditions of employment.

The Alaska Correctional Officers Association  links to the award of Arbitrator Fragnoli here.

The Association also notes here that the Alaska Superior Court has recently confirmed an earlier Award of Arbitrator Janet Gaunt (discussed here) reversing a change in scheduling of certain officers from a seven day to a five day schedule.  

Disparate Treatment 

In Iowa Department of Corrections and AFSCME Council 61, Arbitrator James Cox reduced the termination of a Correctional Officer to a forty day suspension. He did so primarily based on his finding of disparate treatment. Grievant had failed, on a number of occasions, to conduct inmate counts. Similar failures were found involving other night shift employees. In overturning the termination Arbitrator Cox observed that grievant's behavior was not as severe as that of another employee whose termination he had previously upheld. He also noted that the other employees who had engaged in similar conduct (although to a slightly lesser degree) had received only suspensions, concluding:

[Grievant] was one of 12 Officers disciplined for different degrees of similar misconduct in July 2013. It was unfair and unjustified to terminate [Grievant] while at the same time only suspending others involved in the same widespread abuse of the Count requirements in July 2013, whether for ten days or five days, for substantially similar misconduct involving between 2 and 4 occurrences rather than the 10 instances in which [Grievant] engaged. There was no identification of any factor other than the six occurrence differential to warrant his discharge. [Grievant's] discharge for similar misconduct constitutes disparate treatment especially considering the widespread failures to make and then represent having made Counts throughout the month and the number of Officers who were participants.

Accordingly, Arbitrator Cox reduced the termination to a forty days suspension.

Arbitrator Cox's Award can be found here.

Associating with a known criminal-his cousin

The Butler County, OH Sheriff has announced he will continue to appeal the decision of an arbitrator rejecting the termination of a corrections officer. The officer was dismissed after he allowed his cousin, who had recently been discharged from prison, to move in with him. The Sheriff maintained that this violated a contractual prohibition on associating with known criminals. According to a report in the Journal-News, Arbitrator Terry Bethel rejected the termination, noting that the cousin was not a notorious criminal and that grievant's actions would not substantially impair the reputation of the Sheriff's office. Sheriff ordered to rehire fired corrections officer. The arbitrator's award was upheld by the Butler County Common Pleas Court, and the Sheriff has indicated his intent to appeal that decision. Sheriff to appeal ruling reinstating corrections officer

Sunday, August 17, 2014

Arbitrator upholds grievance of Miami police officer terminated for fatal shooting

Arbitrator Martin Soll has found that the termination of a Miami police officer was without just cause.

Grievant was dismissed following his involvement in a fatal shooting. He was part of a joint task force investigating suspected gang activity in Miami. As a result of a request from another officer to stop a car leaving a bar believed to be frequented by gang members, grievant and several other task force members stopped the vehicle. Grievant approached the car and directed the driver to "show your hands." The driver did not  comply, but according to grievant, appeared to reach for what grievant believed to be a weapon. Grievant yelled at the driver "don't do it"  and when the driver continued, grievant fired three shots, killing the driver and wounding the passenger. In fact, the driver had no weapon but what grievant perceived to be a weapon was actually a cell phone.

The shooting was investigated by the Department's Firearms Review Board, and the Board concluded that the firing was unjustified and in violation of the Department's Use of Force Policy. The Chief concurred and terminated the employment of the grievant. The Chief's reasons were summarized in four specific charges, including (i) an allegation that the evidence concerning the shooting was inconsistent with grievant's statement, (ii) a conclusion that neither grievant nor any other person was in imminent danger of death or serious injury, (iii) an allegation that the evidence was inconsistent with grievant's statement that he had seen a black object he believed to be a gun, and (iv) a charge that grievant should not have approached the vehicle but should have instead retreated.

The Union (FOP Lodge No. 20) was unable to resolve the dismissal in the grievance procedure, and submitted the dispute to arbitration before Arbitrator Martin Soll. Based primarily on his factual findings, Arbitrator Soll concluded that the City had failed to meet its burden of proof on the four charges. He concluded that in fact the evidence was consistent with grievant's statement concerning both the shooting and grievant's perception of a weapon. Regarding the second and third specifications, Arbitrator Soll found that the Firearms Review Board had concluded, and the evidence at the hearing supported a finding, that  grievant "reasonably believed he saw what appeared to be a weapon." The Arbitrator found further that there was no basis for the charge that grievant should have retreated,and there was no support for the allegation that grievant had violated the Deadly Force Policy. The Arbitrator found nothing in the Department's Policy requiring  retreat, but instead observed that it specifically provided "it must be remembered that by law, an officer need not retreat in his/her efforts to lawfully control a subject ...".

Arbtrator Soll also noted that, while not determinative,  the Office of the Miami-Dade County State Attorney had investigated the shooting and deemed it justified.

Finding no support for the City's allegations the Arbitrator ordered the City to reinstate grievant with back pay

Arbitrator Soll's award can be found here.

Sunday, August 10, 2014

Introduction of "new" technology doesn't require increase in pay

The City of New Britain, CT employs a number of mechanics responsible for maintenance of its fleet of vehicles. As part of their job duties the mechanic are required to document repairs performed, parts needed and hours spent performing tasks and are responsible for ordering necessary parts. Records were kept on paper work orders.

In May of 2012 the City introduced a new software program and required the mechanics to enter into the computer the information previously entered onto the paper work orders. The mechanics attended a two day training program on the new system.

The Union representing the mechanics (AFSCME Council 4) processed a grievance on their behalf, claiming that the new requirements were more difficult and time consuming. It asserted that the job description for the mechanics did not require them to be proficient in the use of computers or computer software.

The dispute was unresolved in the grievance procedure and was submitted to arbitration before the Connecticut State Board of Mediation and Arbitration.  The Board rejected the grievance, concluding:

 The job description lists among the position's job duties the recording and requisitioning of tools, materials and supplies for the assigned tasks as necessary. ... Clearly, the information required is the same; it is only the method of recording that information which has changed. The computer is nothing more than a different tool to input the information. And while it may take more time to input that information (especially if one is unaccustomed to using a computer), the extra time does not make these duties outside the scope of the mechanics job description. Put another way, taking additional time to perform a task that is clearly within the scope of the job description does not entitle the mechanic to a higher rate of pay.

The Board also rejected the Union's claim that the computer work was actually the work of the manager. While the manager was responsible for overseeing software management programs, what the mechanics performed was, the Board concluded, essentially data entry.

The Board of Mediation and Arbitration's decision can be found here.

Sunday, August 3, 2014

Conduct unbecoming, use of force, drug tests and restraining orders- several police related awards

Conduct unbecoming

Arbitrator Harry G. Mason overturned the termination of a police Sergeant employed by the City of Lakeland, FL. The grievant was dismissed after acknowledging that he had had sex with a civilian employee of the City in his car in a park. Grievant was off duty at the time and his partner was on her lunch break. This issue was uncovered during an investigation of allegations of sexual activity and the exchange of sexually explicit pictures and texts between the civilian employee and several members of the police department. Arbitrator Mason concluded that the City had proved "by significant evidence" that grievant violated the Neglect of Duty and Conduct Unbecoming policies. He agreed with the City that grievant's conduct, and the ensuing publicity, brought the Department into disrepute.  However he found, in the circumstances of this case,and in view of the differing penalties imposed on other officers, that termination was too severe. He observed:

  If the [Grievant's] matter existed in isolation where there had not been so many other sexual activities by other officers that [the Chief] dealt with in the matter that she did, his termination likely would have been for just cause
The CBA requires consistent and appropriate discipline. I find that [grievant] was not disciplined consistent with the discipline imposed on others involved in this sex scandal. 

The Arbitrator ordered grievant's reinstatement as a police officer (not a Sergeant) and awarded back pay at the officer rate. reports on the decision here, and links to Arbitrator Mason's award here.

Use of Force

Arbitrator Janet Gaunt denied grievances filed on behalf of three Portland police officers who were disciplined as a result of their conduct in connection with the incident leading to the fatal shooting of Aaron Campbell. A grievance over the termination of the fourth officer, who fired the fatal shot, was previously sustained by Arbitrator Jane Wilkinson (discussed here).

 Arbitrator Gaunt upheld a two week suspension for an officer who fired a beanbag at Campbell. The Arbitrator found that the City established that the officer acted unreasonably and prematurely. She concluded that "[grievant's] impatience resulted not from a lack of time or an immediate threat, but from annoyance that Mr. Campbell was doing what he wanted to do rather than exactly what [Grievant] was telling him to do."   Arbitrator Gaunt also concluded that the Sergeant in charge of the scene failed to ensure sufficient communication and coordination, and that a second Sergeant also failed to communicate critical information and coordinate his activities.

The Oregonian reports on the case here, and links to Arbitrator Gaunt's award here.

Drug Test

Arbitrator James Reynolds sustained a grievance filed on behalf of a terminated Miami Beach police officer who had been dismissed after failing a drug test. Grievant had been selected for a random drug test, and the test proved positive for the presence of metabolites of cocaine. Grievant denied knowingly ingesting cocaine, but testing of the split sample confirmed the initial results. Subsequently grievant became suspicious of a topical "cream" which a friend had given him to enhance his sexual performance as a possible source. A sample of the cream was tested and was found to contain cocaine. The City found this explanation for grievant's  positive test results unbelievable and terminated his employment.

Arbitrator Reynolds overturned the termination on two separate grounds. Initially he concluded that the City failed to follow its normal investigative process. Contrary to the normal process, in this case the Chief had dismissed grievant prior to a review by a Disposition Review Panel of Command Officers. The Arbitrator noted:

  Clearly the review panel would likely be biased in its review of the [Internal Affairs] findings by knowing that the Grievant had already been terminated by the Chief of Police. The likelihood of that bias, whether intentional or not, is sufficient to find that the fairness standard of just cause was not met in this case.

In addition, and on the merits, the Arbitrator concluded that the City had failed to effectively challenge  the grievant's explanation for the positive test result.  He concluded that the record compelled a finding that Grievant had cocaine metabolites  in his system due to using a cream which he did not know contained cocaine. Arbitrator Reynolds ordered grievant's reinstatement with back pay but provided that grievant would be subject to a minimum of 6 unannounced tests over a 12 month period for up to five years as provided in the City's Drug and Alcohol Policy.

Arbitrator Reynolds' Award can be found here.

Restraining Order

Arbitrator Tim Hatfield denied a grievance filed on behalf of a Woburn, Mass. police officer who was subject to a restraining order arising out of claimed domestic violence. As part of that order, Grievant was prohibited from possessing or carrying a firearm. The order was renewed and not scheduled to expire until February 17, 2015. Grievant was also arraigned on charges of domestic assault and battery, and in May of 2012 entered an Admission to Sufficient Facts on the charges. His employment was terminated on July 11, 2012 based on the admitted to "sufficient facts" and the restraining order prohibition on possession of a firearm.

The Arbitrator concluded that:

The City is under no obligation to  leave a patrol officer's position open for [Grievant] in the hope that he might sometime in the future be eligible to possess and carry a firearm, a fundamental requirement for all Woburn Police Officers. Based solely on this fact alone, the City had just cause to terminate [Grievant]. (footnote omitted) 

Additionally, based on the Admission of Sufficient Facts, and substantially discrediting Grievant's denials and explanations of the incidents in question, the Arbitrator found these also supported a finding of just cause. He noted:

 I agree with the City's assertion that police officers must be held to a higher standard of conduct given their prominent position and responsibilities in  the community.

Arbitrator Hatfield's Award can be found here.

Sunday, July 27, 2014

A weapon in the parking lot, the statute of limitations and public policy - court rejects challenge to arbitrator's award

In its decision in Alabama Gas Corp. v Gas Fitters Local Union No. 548, the District Court for the Northern District of Alabama denies Alabama Gas' request to set aside an award of Arbitrator Jack Clarke and instead grants the Union's request to confirm the award.

The dispute arose out of the dismissal of grievant, a senior mechanic at Alagasco. Co-workers of grievant had reported comments attributed to grievant they found troubling and which the Company believed indicated a potential for workplace violence. During the investigation of the incident grievant admitted making the comments alleged, and also admitted the possession of a firearm in his personal vehicle in the Company's parking lot.

After a hearing, Arbitrator Clarke concluded that the statements attributed to grievant were, taken in context, not threatening and were not "noteworthy" with respect to a propensity for violence. He also noted, however, that the Company had conceded that the "main factor" in the termination was grievant's possession of a loaded handgun in his vehicle in the Company parking lot. The Company maintained that this was contrary to its employment rules.

. While finding that possession of the weapon was a serious act of misconduct, the arbitrator concluded that the penalty of termination was "so excessive a punishment as to exceed the bounds of reasonableness." Accordingly, he reduced the penalty to a thirty day suspension and ordered the Company to reinstate grievant with back pay for the remaining period.

Alagasco filed suit to set aside the award as contrary to public policy. The Union filed a counterclaim seeking to confirm the award.

Alagasco initially sought the dismissal of the Union's counterclaim on the basis that it had been filed more than three months after the award, allegedly outside the applicable statute of limitations. Rejecting this claim, the Court observed:

Alagasco claims that Local 548's counterclaim is filed outside the three-month limitations period set forth in United Steel v. Wise Alloys, 642 F.3d 1344 (11th Cir. 2011). That three-month limitations period, however, governs actions to vacate arbitration awards and thus is inapplicable to Local 548's counterclaim. The statute of limitations for actions to enforce arbitration awards is six months. Samples v. Ryder Truck Lines, 755 F.2d 881, 888 (11th Cir. 1985). Assuming the limitations period begins on the date of the arbitration award, the counterclaim is not barred, as Local 548 filed its answer and counterclaim on October 2, 2013, less than six months from the date of the arbitration award on May 16, 2013.

The Court also rejected the Company efforts to set aside the award on public policy grounds. Observing that the Company's argument was premised on OSHA's general duty clause, the Court determined that this provision "does not constitute an explicit, well defined public policy justifying the vacatur of the arbitration award in the case at bar."  The Court also found inapplicable Alagasco's reliance on the 11th Circuit's decision in Delta Air Lines v. Air Line Pilots Ass'n (vacating an arbitration award reinstating a pilot who flew a passenger jet while intoxicated). It found that decision distinguishable at least three significant ways. First, [Grievant's] misconduct was not integral to the performance of his employment duties. Second, [Grievant] may have violated Alagasco's Policy No. 401, but he did violate federal  agency regulations and the criminal law that formed the basis of a well-defined and dominant public policy. Third, [Grievant's] reinstatement was not a clear violation of any public policy.

However, the Court denied the Union's request for attorney's fees finding the Company's reliance on the Delta Air lines decision was not "wholly unreasonable."