Sunday, July 20, 2014

More from the Fifth Circuit on "implied findings of just cause"

The Fifth Circuit has, on several occasions, refused to confirm an arbitrator's award where it determined that the Arbitrator's factual findings constituted an "implied finding" of just cause. This line of cases is discussed here. Essentially, the Court has found that where the cba provides that a specific act of misconduct is grounds for termination, an arbitrator's finding that the grievant engaged in the conduct alleged impliedly finds just cause for termination and the arbitrator is not free to reduce the penalty.

The Court has once again addressed this issue, but in this case concludes that the cba in issue does not compel such a result.

In Steelworkers v. Delek Refining, LTD. the Court reversed the decision of a District Court and affirmed an award of Arbitrator Daniel Jennings reinstating a grievant who had been dismissed for "unacceptable performance and insubordination." Arbitrator Jennings concluded that Delik lacked just cause for the termination, but did find that grievant's actions warranted a two month suspension.

Delik sought to set aside the award, and the District Court for the Eastern District of Texas found that "The arbitrator exceeded his authority as set by an arguable construction and application of the CBA. The arbitrator made an implicit finding of just cause for discharge and improperly fashioned an alternate remedy. The District Court's decision, adopting the report and recommendation of the magistrate, can be found here.

The Union appealed, and the Fifth Circuit reversed. It determined that its prior decisions did not support the District Court's opinion. While recognizing that it has previously held that "[i]f a collective bargaining agreement defines "proper cause" to include a nonexhaustive lists of offenses, an arbitrator cannot ignore the natural consequences of his finding that a listed offense was committed, the Court found that principle inapplicable in this case. It noted :

Whereas the CBAs in Delta Queen and DuPont contemplated discharge as the only available sanction upon a finding of cause, the CBA here—like that in Albemarle—contemplated both discipline and discharge as available sanctions. ... Providing for the right to "fire and discipline for just cause," the CBA between Delek and the Union did not clearly mandate that any performance or safety issues required discharge. See Albemarle, 703 F.3d at 826 (holding that the availability of discharge, suspension, and discipline "for cause" did not "make clear that any violation of safety rules is an offense requiring discharge"). Rather, "by its terms, the CBA [between Delek and the Union] contemplate[d] situations in which a finding of `cause' could support lesser sanctions than terminations.

The Court also rejected Delek's argument that a final warning previously issued to grievant amounted to a binding last chance agreement.

Accordingly, a majority of the Court found that the Arbitrator had not exceeded his authority and his award was entitled to confirmation. The dissenting Judge believed "{Grievant's] accident-prone history and Delek's repeated attempts to discipline and warn him provide the requisite backdrop for holding that the arbitrator's finding of just cause to discipline was also an implicit finding of just cause to terminate."

Sunday, July 13, 2014

APWU wins one, loses one

APWU prevailed in a recent arbitration before Arbitrator Stephen Goldberg concerning the minimum qualifications needed for excessed employees transferring to a different unit, but a grievance concerning outsourcing Personal Vehicle Service (PVS) trucking operations in Columbus, OH. was denied by Arbitrator Shyman Das.

Arbitrator Goldberg upheld a grievance asserting that the Postal Service had violated the cba by reassigning employees excessed from the APWU bargaining unit to positions in another bargaining unit for which they did not meet the minimum qualifications. The Arbitrator rejected the Postal Service's argument that it did not and need not consider the physical qualifications stated in the Qualification Standards for Letter Carriers as part of the minimum qualifications an excess worker must meet prior to reassignment. He also rejected the employer's claim that it would be violating the Americans With Disabilities Act if it failed to reassign employees who could not meet the physical requirements of the position.

Arbitrator Das rejected a Union grievance which claimed that the Postal Service had breached a provision of its cba with APWU that required advance notice of contracting "which will have a significant impact on bargaining unit work." Relying on a prior award of Arbitrator Goldberg (discussed here), the Union claimed that the "mode conversion" in Columbus represented a significant impact on unit work. It noted the loss of 54 driving jobs and the likelihood that the work would never return to the unit. 

Rejecting this argument Arbitrator Das observed:

The contracting out at issue in this Columbus PVS case, in contrast to that in the Goldberg decision, pertains to one location within Ohio with 54 affected bargaining unit members, rather than all 13 locations in California with 800 affected bargaining unit members. In the California case, 10% of the total drivers in the craft nationwide were displaced. The Columbus mode conversion had an impact on 0.7% of the drivers in the bargaining unit and less than half a percent of the entire MVS unit. Over the four-year length of the HCR, the salary and benefits of the Columbus drivers amounted to around $16.4 million out of a total PVS salary and benefits cost of $3.9 billion and a total drivers salary and benefits cost of $2.4 billion. Considering the impact from a unit, rather than a local, perspective, the displacement of 54 drivers at a single installation, while significant to the individuals involved, does not, in my opinion, rise to the level of significant impact contemplated in the National Agreement.

APWU reports on the decision of Arbitrator Goldberg Arbitrator Rules: Excessed Employees Must Meet Minimum Qualifications Before Reassignment, and links to the award here. It reports on the Award of Arbitrator Das Arbitrator Denies Union's Grievance Protesting PVS Conversion To Highway Contract Route and links to his award here.

Sunday, June 29, 2014

Arbitrator conditions reinstatement on personal apology

Grievant was employed as a civilian dispatcher by the Cleveland Police Department. On March 6, 2013, he handled a call from the Board of Education reporting a school lock down and a belief that an unidentified individual was in route to the school to "shoot up" the facility and possibly those in it. Grievant's handling of the call, and his conduct immediately thereafter, was the subject of criticism by the management of the call center. He was ultimately disciplined for a number of acts of alleged misconduct, including improper use of his personal cell phone to conduct official business, leaving the dispatch center early without permission, and being "untruthful" concerning permission he claimed to have received from the Commander of the center concerning handling of the situation. He was also charged with using "disrespectful, derogatory and insubordinate language" when describing his interactions with the Commander. These conversations were recorded .Grievant's  employment was terminated.  The Union grieved the termination, and the matter was submitted to Arbitrator William Allport.

Arbitrator Allport found that grievant had engaged in much of the conduct alleged, but found termination too severe a penalty. With particular reference to Grievant's language concerning the Commander, Arbitrator Allport found Grievant's comments "at best ill advised, derogatory, and regretful." Given the "gravity" of the comments, together with Grievant's other transgressions, the Arbitrator concluded that Grievant should be reinstated without back pay. As part of the remedy, however, he also ordered Grievant to "compose and sign a Letter of Apology" directed to the Commander, sincerely apologizing for his remarks. This letter was to be personally delivered to the Commander by Grievant, accompanied by his Local President and Union Counsel, and was to be paired with an oral apology. At the option of the Commander, the letter could be posted in the center for a period of 45 days.

Arbitrator Allport appended to his award a sample Letter of Apology. The sample reads:

To: Commander S
I genuinely regret the insolent and disrespectful statements that I made respecting you on March 6, 2013. There is no excuse for such conduct. I was wrong to make those statements and I sincerely apologize to you for such inappropriate and offensive remarks.
I understand and agree that my conduct on March 6, 2014 was totally unacceptable by any standard.
I can assure you that I will never make disrespectful comments concerning you or any other supervisory employee of the Cleveland Police Department in the future.
I am hopeful that you will forgive me for this indiscretion.
Once again my sincere apology.

Should Grievant decline to write and deliver the letter, and the personal apology, the reinstatement called for in the Award would become "Void" and the original termination stand.

19actionnews reports on the dispute (Another worker fired from Cleveland police gets his job back), and links to Arbitrator Allport's Award here.

Sunday, June 22, 2014

Disciplinary Demotions- Two Recent Cases

Two recent cases discuss the use of demotion as a disciplinary vehicle for misconduct.

Arbitrator Anthony Vivenzio has issued an award overturning the demotion of a Portland, OR police Captain to the rank of Lieutenant. The demotion had been imposed because of grievant's conduct during a "road rage" incident in which grievant displayed his weapon, two incidents of alleged inappropriate touching of   employees, and his conduct during a Weingarten meeting in which he allegedly lost control of his temper. The initial proposed discipline had been termination, but following a "mitigation" hearing the Chief and Mayor decided to demote grievant rather than terminate his employment.

While finding that the grievant had committed the acts and exhibited the behaviors with which he had been charged, Arbitrator Vivenzio found the discipline imposed, which he described as an "indeterminate sentence" of demotion, to be without just cause. In rejecting the demotion the Arbitrator noted:

*** I, like many arbitrators, am interested in discipline that, while holding an employee accountable, promotes their future functioning in the workplace. Here, the Grievant has already experienced the personal embarrassment of working among his fellows for a significant period of time while openly downgraded to a lower rank. Further, several of the events at issue took place approximately 4 years ago, prompting a frustrated staffer to state that the (investigatory) file was “growing mold.” The most recent event took place more than 30 months ago.

A number of arbitrators have held that demotion for an indeterminate term is not discipline, but merely punishment, and have reversed such actions. Elkouri and Elkouri, Seventh Edition. Discipline, a concept to which just cause is allied, and to which the PPB subscribes, seeks the betterment and development of an employee which the employer hired, and promoted upon his satisfaction of rigorous standards, and in whom it has made significant investment. Cases for mere punishment do exist, but only in those cases where such a damaged relationship exists between employer and employee that its imposition is worth the damage to both the employer and employee. This is not that case. The record reflects that, following the Idaho incident, Grievant was retained by the Employer in positions requiring significant judgment and responsibility and performed successfully.

Instead, the Arbitrator concluded that a sixty day suspension was more appropriate.

Demotion was also an issue in an award issued by Arbitrator Nels Nelson. Arbitrator Nelson's award resolved grievances filed by three members of the Cleveland Police Department. The discipline arose out of the officers' conduct in connection with a police chase that ended with the fatal shooting of two individuals.

The City demoted a police Captain and a police Lieutenant, and terminated the employment of a police Sergeant. The FOP pursued each of these matters to arbitration. Arbitrator Nelson noted initially that while contracts typically give an employer the ability to suspend or discharge for just cause, the cba here explicitly provided that the City could also demote for just cause. 

With regard to the Captain and Lieutenant, the Arbitrator observed that the demotion resulted in a base pay reduction of 16.1%, equivalent to a 36 day suspension. He further noted that "[i]n each subsequent year, [they] faced the same penalty." Arbitrator Nelson found this penalty unduly severe. In both cases he determined that the demotion should remain in effect only until July 11, 2014, at which time the grievants would be restored to their former positions.

Regarding the dismissed Sergeant, Arbitrator Nelson found an absence of just cause for termination. However, finding that he had failed to meet his supervisory responsibility and "chose to sit idle for a number of minutes as the pursuit continued," the Arbitrator found "[t]he proper remedy is clear." He ordered the dismissed Sergeant reinstated as a patrolman until July 11, 2015, at which time he should be restored to his former position. 

In a footnote, Arbitrator Nelson acknowledged that reinstating grievant to a position in a different bargaining unit, represented by a different union, could cause "concern," but felt that "in the interest of fairness" the two unions should be able to resolve any issues that might arise. 

Oregon Live reports on the dispute addressed by Arbitrator Vivenzio here, and links to his award here.
WKYC reports on the dispute addressed by Arbitrator Nelson here, and links to his award here.

Sunday, June 15, 2014

Grievance over termination because of denial of unescorted access not subject to arbitration

Grievant was employed as an armed nuclear security officer at Exelon Generation Co.'s Oyster Creek nuclear generating facility in Forked River, N.J. After his employer discovered he had failed to identify a previous medical condition on a medical history questionnaire, ExGen's Access Authorization department began a review of his access status and ultimately denied him unescorted access. Grievant appealed this denial through the appeal procedure and, at the same time, filed a grievance. His appeal was denied and his employment was terminated because of his inability to have unescorted access to the facility. His grievance was also denied and the Union sought to pursue the dispute to arbitration. The Company refused to arbitrate and the Union brought an action seeking to compel arbitration.

The grievance procedure of the cba provided for the arbitration of differences or disputes but also provided "that issues involving the decision to grant or deny unescorted access under the access authorization program ... shall be resolved through the access authorization program appeal procedure, not through the grievance and arbitration procedure."

Despite this language, the Union claimed the provision was ambiguous, and that the employer had not shown the requisite "forceful evidence" of an intent to exclude the grievance from arbitration.

The court was not persuaded. It noted:

Regardless of why an employee ended up losing his unescorted access, that he lost it, and that discharge was based in some way on that loss of access (i.e. somehow "involve[d]" the loss of access) brings the dispute within the exclusion clause and thus renders it unarbitrable. This atom cannot be split.
Any suggestion that this state of affairs is somehow unfair is also unpersuasive: The question here, one must remember, is not whether review may be sought, but rather whether the parties agreed, as a matter of contract, to arbitrate this particular type of dispute. The CBA's language is unambiguous that they did not, and that, in essence, is the end of the matter.

Accordingly the court denied the Union's motion to compel and granted the employer's cross motion, dismissing the action.

The court's decision in United Government Security Officers of America v. Excelon Nuclear Security can be found here.

Other cases involving arbitration of disputes concerning unescorted access (one also involving Excelon) can be found here and here.

Sunday, June 8, 2014

Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension


Arbitrator Dennis McGilligan has sustained a grievance filed by the Illinois FOP on behalf of a Sheriff's Deputy whose employment was terminated following the alleged theft of two plants from a local park.

Grievant was on duty the night of May 4, 2012. When she stopped at a local park to use the rest room she noticed two plants near the entrance. Grievant testified she assumed they had been abandoned after some function in the park. She place one in her patrol vehicle, drove back to her residence and placed the plant in her driveway. Several days later grievant returned to the park, saw the other plant still there, picked it up and placed it by her front door. In fact, the plants had not been abandoned, but had been placed in the park as part of beautification project.

Following an investigation, grievant's employment was terminated, and she was subsequently prosecuted criminally for theft. At trial, she was acquitted of all charges.

The arbitrator's award

 The standard of proof 

 In reaching his decision, Arbitrator McGilligan first addressed the proper standard of proof to be applied. Agreeing with the Union, he concluded that the appropriate standard was one of "clear and convincing evidence." He found that this was the "appropriate standard of proof when the charges involve theft by a police officer" and that "Such a conclusion is consistent with the standard adopted by most arbitrators in disciplinary cases."

The taking of the plants  

Turning to the merits, the Arbitrator concluded that the Sheriff's Department had not met this test with regard to the allegation of theft. He found no basis to discredit grievant's testimony that she believed the plants had been abandoned, and noted that she had made no attempt to hide them. However, he did conclude that grievant had failed to demonstrate "common sense" in exercising her discretion to determine whether or not to report the plant as abandoned property, and in so doing had violated the Department's Policy on handling abandoned property. Accordingly, and noting she had appeared to have been treated more harshly than male employees who had committed infractions, Arbitrator McGilligan reduced the termination to a thirty day suspension

The post termination conduct

Approximately a year after her termination, (but prior to the arbitration hearing)  grievant entered an "Open Plea" to a charge of "retail theft" for an unrelated incident. The parties jointly described an open plea as an admission of guilt by the defendant, but a withholding of any judgment until the expiration of a period of supervision. If the defendant successfully completes a period of supervision, the underlying charge is dismissed.

At the arbitration hearing, the Department argued that the plea was relevant to grievant's credibility. According to the Arbitrator's award, the employer also maintained that the plea: also relevant to the appropriate discipline in this case. The Employer believes that without question the conduct in question is more than sufficient to sustain the discharge. However, the Employer opines the subsequent theft conviction for conduct that occurred about a year later simply underscores that the Grievant is unfit for duty ever again as a Department Deputy. The Employer also opines that it will have a negative impact on her ability to testify in the future and will need to be disclosed to criminal defense attorneys.

In contrast, the Union argued that the plea should be given no consideration, and the decision should be limited to the reasons given at the time of discharge

After discussing the general principles concerning the impact of post termination conduct, the conditional nature of an open plea and the grievant's general reputation for honesty, the Arbitrator concluded:

...the Arbitrator believes that the Grievant should be disciplined for her post-discharge retail theft. While there is little in the record as to the circumstances of this theft, nevertheless, her behavior is disappointing. ... Therefore, the Arbitrator will impose a sixty (60) day suspension for her post-discharge misconduct. If she does not successfully complete the court supervision then she should serve a suspension from the date of her open plea to the date of her reinstatement.

The Employer's Appeal

According to a report in the Illinois Times (here), The Sheriff's Office has filed suit seeking to overturn the Arbitrator's award. The Sheriff's office claims that the Arbitrator "overstepped his bounds" when he ordered discipline in the shoplifting case. It claims it only brought up the shoplifting issue as a factor in assessing grievant's credibility. The report also notes that the Sheriff had apparently sought to have the Arbitrator reconsider his decision and limit back pay only to the period between the initial termination and the open plea, a request the Arbitrator denied.  It is now seeking to overturn the entire award because it believes the Arbitrator's decision in the plant case and the shoplifting case are "inexplicably intertwined."

The Illinois Times reports on the Arbitrator's decision here, and links to the Arbitrator's award here.

Sunday, June 1, 2014

Recent Developments-Quick Hits

Arbitrator overturns termination of police officer for claimed use of excessive force

Arbitrator Stanley Sergent has overturned the termination of a police officer in Sarasota FL who had been fired for alleged use of excessive force. Grievant had admittedly used several "empty-hand strikes" in an effort to control the individual he was attempting to arrest. The City maintained that the number of strikes, together with the absence of any time between them to determine compliance, rendered the use of force excessive. Initially Arbitrator Sergent noted that the Supreme Court has held that the test for whether the use of force is excessive must be determined from the perspective of a reasonable police officer on the scene, not "with the 20/20 vision of hindsight."  Arbitrator Sergent determined that grievant reasonably believed the subject was continuing to resist. He also found that while the City could have a more restrictive policy, it failed to demonstrate that grievant had violated that policy. While ordering grievant's reinstatement, the arbitrator did find that grievant's use of profane and abusive language and flagrant demonstration of anger and frustration was "clearly inappropriate,' warranting some punishment. Accordingly he replaced the termination with a thirty day suspension. The Sarasota Herald Tribune reports on the decision, Sarasota officer fired in Club Ivory beating to be reinstated, and links to Arbitrator Sergent's award here.

Student Assistance Coordinator who facilitated "refund" of drug transaction properly terminated

 Arbitrator Michael Peckler has upheld a determination of "conduct unbecoming" an educator who allegedly arranged a refund of a cash for marijuana transaction between students after one of the students complained of being shortchanged. After an extensive analysis of the conflicting claims, the Arbitrator concluded:

 [Grievant's] facilitation of the drug/cash exchange to make the controversy go away is contrary to the proactive, vigorous, front-line approach that is required of all teaching staff members. And her brokering of a refund between G.H. and J.C. combined with her position that she was going to report the students but for the school administration being too busy demonstrates such an egregious display of poor judgment and obfuscation that removal is the only appropriate remedy.

Arbitrator Peckler's award can be found here.

Arbitrator upholds suspension for false claim in grievance

Arbitrator Harry Crump has upheld a four day suspension imposed on a Blaine, MN police officer. Grievant had been issued a letter of reprimand for allegedly working private overtime while on call without arranging for appropriate coverage. The Union prepared a grievance on her behalf, which she signed. The grievance asserted that grievant had arranged for a named detective to cover her on call assignment. The City deemed this assertion to be unfounded, and imposed a suspension for grievant's alleged dishonesty. Arbitrator Crump found no evidence that the assertion was not "knowingly or deliberately untruthful" and denied the grievance. He explained:

The undersigned opine that there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.

Arbitrator Crump's award can be found here.