Tuesday, June 16, 2015

June Update: Police suspensions, striker misconduct, a spitting teacher and a question of notice

Arbitrator reverses suspensions of police officers involved in fatal chase

Arbitrator Dennis Minni has sustained grievances filed on behalf of four Cleveland police officers.  The four grievants were supervising officers and were disciplined for alleged offenses including failing to request permission before joining the chase, leaving subordinates unsupervised, and failing to monitor the automatic vehicle locator ("AVL"). Initially, Arbitrator Minni explained that he believed the appropriate standard of proof was that of clear and convincing evidence. He noted his belief that most arbitrators utilized this standard in disciplinary cases because of the employer's control of the workplace and equipment and access to employees. Requiring this level of proof, in his opinion, "levels the playing field and helps insure that workplace due process occurs." Concluding that the City failed to meet this burden he sustained the grievances, noting also that he could not "escape a fairly pervasive feeling that these disciplinary decisions were designed to play to a different audience rather than correct and rehabilitate in the labor-management sense."

 Cleveland.com reports on the case and links to Arbitrator Minni's award here.

NLRB ALJ refuses to defer to arbitrator's award,  finds picketer's racially charged statements protected

 Administrative Law Judge Thomas Randazzo concluded that Cooper Tire violated the National Labor Relations Act when it terminated the employment of a locked out employee for racial remarks directed to a replacement employee crossing the Union's picket line. The termination was submitted to arbitration, and Arbitrator Roger C. Williams upheld the termination. The Arbitrator found that grievant's conduct violated the explicit terms of Cooper's harassment policy and that the use of racial slurs on the picket line increased the possibility that the constant verbal exchanges would escalate into violence. Applying the Board's traditional standards (i.e. before those were modified in Babcock & Wilcox Construction Company), the ALJ found the Arbitrator's decision "clearly repugnant" to the Act and therefore refused to defer to the Arbitrator's award.
The ALJ's decision is available here.

Arbitrator upholds tenure charges against teacher accused of spitting at student

Arbitrator Tia Schneider Denenberg has upheld the dismissal of a tenured teacher, finding he spit at a student who had walked out of his classroom following a verbal altercation. While noting that the teacher appeared capable, with multi-lingual skills and good performance reports, "by responding intemperately to an aggressive student in defiance of a clear caution, he gave the district grounds for doubting his self-control." Accordingly she concluded that the district had shown cause for removing the teacher from his tenured position.

Arbitrator Denenberg's award can be found here.

Connecticut Supreme Court upholds arbitrator's award finding just cause for dismissal of family services worker

Grievant was employed as a social worker with the Connecticut Department of Children and Families.  She became the foster parent of a child who had been returned to the Department by another foster family. According to the grievant, the child fell from a bed. The child was taken to the hospital but was pronounced dead. Grievant was criminally charged with manslaughter and risk of injury to a child, and her employment with the Department was terminated. She was acquitted of the criminal charges, and the employment termination was submitted to an arbitrator for decision. The arbitrator concluded that in light of  the medical examiner's finding that the physical injuries on the child were not consistent with death from a fall, but rather from shaken baby syndrome, the Department had not carried its burden of establishing that grievant had committed the fatal abuse of which she was accused. However, the Arbitrator found that grievant's own explanation of the incident established that she had been negligent and the child's fall could have been the "last straw" for earlier traumatic injuries. The Arbitrator concluded that grievant's "moment of negligence" had unusually serious consequences and that the totality of circumstances made her unemployable by the government entity responsible for the care and welfare of children.
The Union sought to set aside the award, and the Superior Court agreed, finding that "The arbitrator exceeded her authority in using negligence as a standard and basis for her award. The charge of negligence was never made by the department at the [Loudermill] hearing or in the termination letter...." On the Department's appeal, the Appellate Court reversed, finding that grievant was adequately notified of the conduct in issue, even if the term negligence was not used. The Connecticut Supreme Court had now affirmed that decision, rejecting the Union's claim that grievant had not been properly notified of the charges against her. The Court held:

[Grievant] was clearly informed that the arbitrator would consider whether her conduct on the night of May 19, 2008, constituted just cause for termination. 
Although [Grievant] did not concede that she had been negligent, this was a legal conclusion that the arbitrator was free to draw from her testimony, one that is not subject to review by this court. Therefore,  [Grievant] was provided with sufficient notice to satisfy her right to due process and the notice provision of the collective bargaining agreement. 

 The Court's decision can be found here. The opinion of Justice Eveleigh dissenting on the due process issue can be found here.

Sunday, May 31, 2015

Arbitrator rejects grievance but imposes a remedy - Union succeeds in vacating award

The cba between North Memorial Health Care and The Minnesota Nurses Association provides that an employee with thirty years service cannot be required to work weekends unless compliance would "deprive patients of needed nursing service." When grievant reached her thirty year mark she requested to be exempt from weekend work. Her request was denied, however, because the institution deemed the request inconsistent with necessary patient care. The Union grieved the denial, and the dispute was submitted to Arbitrator Richard John Miller.

Arbitrator Miller denied the grievance, finding that the contract expressly allowed the institution to invoke a patient care exception. He noted, however, that it would be arbitrary  and discriminatory to allow the Medical Center to deny grievant the opportunity to decline weekend work while allowing other, similarly situated employees, to do so. Accordingly he ordered that "if [North Memorial] invokes the 'exception' proviso to compel qualifying nurses to work on weekends the number of required weekends shall be equally shared (divided) among those qualifying nurses. . . ."

 MNA moved to vacate the award. The Union claimed that the Arbitrator had exceeded his authority by deciding an issue not submitted to him, and by effectively nullifying other provisions of the cba which prohibited a change in a nurse's written work schedule without the employee's consent.

The District Court agreed with both claims. It determined first  that:

The record reflects that neither party expressly asked the arbitrator to devise a remedy in the event he found a violation of the CBA. Of course, it may be implied that the parties agreed a remedy should issue if a violation occurred, as MNA suggested various scenarios in which it believed North Memorial could meet patient care needs while still offering the no weekend work benefit to Drake. ... Here, however, Miller found no violation but nonetheless imposed additional obligations on the parties. ... There is no indication that the parties intended Miller to issue a remedy without first finding a violation on the part of North Memorial. Indeed, Miller's own issue statement premised fashioning an appropriate remedy on first finding a CBA violation. .... Because Miller strayed beyond the issues submitted to him, vacatur is warranted.

The Court also agreed that by requiring North Memorial to divide weekend shifts equally among nurses who qualify for the no weekend benefit the award nullified other articles of the cba. The Court found this to be an independent basis for setting aside the award. 

The Court's decision in Minnesota Nurses Association v. North Memorial Health Care and North Memorial Medical Center can be found here.

Sunday, May 17, 2015

Rhode Island Supreme Court finds arbitrator improperly ignored management-rights clause

Grievant was an officer for the Rhode Island Department of Corrections. The Department received information that two officers were smoking marijuana in a department vehicle while on duty. An investigation uncovered that one officer had in fact been smoking marijuana in the vehicle, and the second, the grievant, had been in the vehicle but had failed to report the incident. Grievant repeatedly denied seeing the other officer smoking until he was advised that of the existence of a witness, at which time he admitted that the other officer had been smoking marijuana on duty.  Grievant's employment was terminated for failing to report that the officer was smoking marijuana on duty and for dishonesty during the investigation.

 The dispute was pursued to arbitration and an arbitrator converted the termination to a 60 day suspension. In doing so the arbitrator noted that the cba did not contain a schedule of offenses and related discipline and he relied instead on evidence submitted concerning a prior incident of claimed dishonesty which resulted in a suspension. The arbitrator observed:

[i]f, over an extended period of time, management has responded to a particular type of offense with a range or band of discipline based on the individual circumstances and severity of a case, an arbitrator would be hard[-]pressed to go outside that defined spectrum of penalties unless the offense itself is significantly outside said spectrum.

The Department sought review of the decision, and the Superior Court vacated the award finding that the decision was based on a "manifest disregard" of the cba.  It concluded that the arbitrator had "exceeded his authority and reached an irrational result" when he ignored the management rights provision of the cba.

The Union appealed to the Rhode Island Supreme Court, which has now affirmed the lower court's decision.  The Supreme Court determined:

Here, the arbitrator did not resolve the dispute based on any provisions in the CBA. In fact, the arbitrator decided—improperly we conclude—that, because the CBA did not list offenses and corresponding penalties, he would not rely on the CBA in making his decision and instead would "look elsewhere for guidance on this question" to reach this result. Not only is the CBA pertinent to the determination of just cause in this case, the arbitrator's failure to consider its terms was a manifest disregard of the contract.

The Management Rights section of the CBA, specifically section 4.1A., provides that
"the employer shall have the exclusive right, subject to the provisions of this [CBA] and consistent with applicable laws and regulations: * * * To hire, promote, transfer, assign, and retain employees in positions within the bargaining unit, and to suspend, demote, discharge or take other disciplinary action against such employees[.]" (Emphasis added.)

The arbitrator wholly overlooked this section of the CBA in his decision.

 The Court rejected the Union's argument that the lower court had incorrectly found that the management rights clause superseded the just cause provision, observing:

 ...we do not agree with this characterization of the trial justice's determination. The trial justice concluded that the arbitrator exceeded his authority when he manifestly disregarded the management-rights provision of the CBA, not that the management-rights provision trumped the just-cause provision. We agree with her conclusion.

 Two justices "respectfully, but nonetheless forcefully," dissented. They believed that the majority was improperly substituting its judgment for that of the arbitrator and that the award was well within the arbitrator's authority to decide whether there was just cause for the discipline.

The Court's opinion in State of Rhode Island Department of Corrections v. Rhode Island Brotherhood of Corrections Officers can be found here.

Sunday, May 10, 2015

Quick Hits - Law Enforcement

Officer's growing large amount of marijuana doesn't justify immediate dismissal

Grievant was employed as a police officer for the City of Buffalo. He was the subject of criminal and internal affairs investigations which revealed that he was growing large amounts of marijuana in a warehouse. He had visited the area of the warehouse on several occasions in his police vehicle. When confronted with the results of the investigations, the officer acknowledged that he had been participating in the marijuana grow operation since before he joined the Department. The Police Commissioner summarily terminated his employment. The Buffalo PBA pursued a grievance claiming that the City had failed to provide grievant with the contractual right to an informal conference and a formal hearing before terminating his employment. Arbitrator Jeffrey Selchick sustained the grievance, noting "the [contract] language brooks no exception based on the Commissioner's perception, no matter how reasonable and well founded, that the evidence of an officer's wrongdoing is overwhelming and termination is fully justified." The Arbitrator ordered the City to pay grievant for lost pay until the date of his guilty plea, less a thirty day unpaid suspension the City would have been contractually able to impose while it investigated.

 WIVB.com reports on the case, City to pay nearly $220k to dirty cop behind bars, and links to Arbitrator Selchick's award here.

Public policy requires a determination of likelihood grievant will re-offend before reinstatement award can be upheld

An earlier post, Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations, noted an award reinstating a police officer who had been accused of using excessive force and of being less than candid with the Department. Although finding both of these allegations supported by the evidence, the Arbitrator found the delay in the Department's investigation and the failure of superior officers with knowledge of the incident to take timely action weighed against termination. Accordingly he ordered the grievant's reinstatement without back pay. The City sought to vacate the award, and the Circuit Court for Cook County granted the City's request, finding the award contrary to public policy. The Union appealed, and the Illinois Appellate Court has now reversed that decision and sent the dispute back to the arbitrator for him to make a specific finding on the likelihood that grievant would engage in similar conduct if reinstated. Clarification of the award is necessary, according to the Court, to allow it to "fully assess [the award's] public policy implications." The Court's opinion can be found here.

Sheriff's Deputy leaving official vehicle in the dark on side of highway and making false statement during investigation just cause for dismissal

Arbitrator James R. Cox has upheld the termination of a Sheriff's Deputy for parking his official vehicle at least partly in the traffic lanes, turning the lights off and then "intentionally making false and inaccurate reports of the circumstances to investigating officers." Pantagraph.com reports on the case, Ex-deputy's firing upheld by arbitrator, and links to the award of Arbitrator Cox here.

Dismissal of officer for discharging weapon while off duty upheld

The Connecticut State Board of Mediation and Arbitration has denied a grievance filed on behalf of a New Haven officer. Grievant was one of three off duty officers at a restaurant when the New Haven PD received a report of shots being fired in the area. Several spent shell were found in the area and it was determined that 5 of the 6 shells had come from grievant's weapon. The Union maintained that the evidence was insufficient to support a termination, or, alternatively, that lenience should be shown and a lengthy suspension be imposed. The panel unanimously rejected these positions noting "This incident was not a minor issue such as firing off a firearm in the woods by teenagers. This was an incident where a mature police officer fired off at least five rounds in the middle of a congested city where someone could have been wounded or killed by an off duty police officer sworn to uphold the law against such activity."

The panel's decision can be found here

Sunday, May 3, 2015

Connecticut Supreme Court clarifies use of public policy in challenges to arbitration awards

Since first recognizing a public policy exception to the general rule of deference to arbitrator's awards, the Connecticut Supreme Court has issued six decisions in which an employer has sought to vacate, on public policy grounds, an arbitrator's award reinstating an employee. The Court summarized those decisions as follows:

 In one half of those cases, we held that reinstatement of the terminated employee violated a clear public policy of the state. See State v. AFSCME, Council 4, Local 391, supra, 309 Conn. 521 (correction officer engaged in persistent sexual harassment of coworkers); Groton v. United Steelworkers of America, 254 Conn. 35, 36–37, 757 A.2d 501 (2000) (weighmaster at municipal landfill pleaded nolo contendere to embezzlement charge); State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 468–69, 747 A.2d 480 (2000) (correction officer placed obscene, racist telephone call to state senator). In the other three cases, we upheld the decision of the arbitrator reinstating the terminated employee. See Stratford v. AFSCME, Council 15, Local 407, supra, 315 Conn. 50–52 (police officer misrepresented history of alcohol use during official medical exam); State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 129–31 (Department of Mental Retardation employee shoved agitated client into chair); South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 802–805, 770 A.2d 14 (2001) (police officer deemed unfit for duty after drawing gun on trespassers playing basketball in school gym). 

In its unanimous decision in Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199 the Court has, in an effort "to assure consistent, principled decisions," clarified the factors a reviewing court should consider when evaluating such a claim. The case arose from the arbitration of a grievance filed by an employee of a nursing facility. The grievant had delayed in reporting her suspicion that a resident had been abused. The arbitrator concluded that while the delay warranted some discipline, termination was too severe. The employer sought to vacate the award, but the Superior Court denied the request. The nursing home appealed, and the Appellate Court (in an opinion discussed here) vacated the arbitrator's award. The Appellate Court determined that the award violated the public policy calling for protection of nursing home residents. The Supreme Court has now used this case to clarify the factors to be used by courts in reviewing awards in the face of a public policy challenge, and to assist arbitrators in the types of factual findings they may make to assist a reviewing court in considering such a challenge. The Court synthesized a four pronged test for review:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible

Applying these factors to the case before it, the Court first found no serious challenge to the applicable public policy of protecting vulnerable nursing home residents. Concerning the second issue, the Court observed that it is a "rare case" in which the Court will vacate on public policy grounds an award reinstating an employee in the private sector. It recognized however, a limited exception when reinstatement of a grievant by itself would pose a serious threat to public safety (e.g. reinstatement of a pilot for operating an aircraft while drunk). The Court noted that residential nursing home facilities pose "something of an exceptional case" because of the state's interest in protecting vulnerable residents. It found this factor neutral with respect to vacating the award in this case. Turning to the third and fourth factors, the Court found an insufficient basis for overturning the award. It noted that, as found by the arbitrator, grievant had in fact ultimately reported her suspicions, and there was no evidence of a likelihood of recidivism. Finding that the Appellate Court had improperly substituted its judgment for that of the arbitrator, the Court reversed and remanded the case for consideration of a second issue not previously addressed by the Appellate Court.

Sunday, April 26, 2015

Arbitrator reinstates police officer - Police Standards Council revokes his police certificate - Alaska Supreme Court affirms both

Lance Parcell was employed by the Airport Police and Fire Department of the Alaska Department of Transportation. In 2006 he was  investigated  for alleged violation of Department rules "relating to unbecoming conduct, courtesy, sexual harassment, private conduct and truthfulness, immoral conduct (deception) and harassment." After an investigation and an interview with the Chief, his employment was terminated. The dispute proceeded to arbitration, and "by the slimmest of margins" Arbitrator Harry MacLean concluded that Parcell should be reinstated without back pay. The arbitrator determined that Parcell's behavior was contrary to his professional responsibility, sexually offensive, and "as far over the line as one could imagine."  He also found that while the Department had not established that Parcell had lied it did prove that he had been "evasive, misleading and not forthcoming." Nevertheless, he concluded that a penalty less than termination was appropriate.

The Department sought to vacate the award, but the Superior Court denied the request. On appeal to the Alaska Supreme Court, the Court affirmed the denial of the request to vacate. State v. Public Safety Employees Ass'n. The Court observed:

While we may disagree with the arbitrator's ruling, this is insufficient to justify reversing the decision given our deferential standard of review. In his opinion, the arbitrator found the grievant to have engaged in harassing conduct and to have been evasive and misleading during the investigation, but he also found there to be a number of mitigating factors that favored a lesser penalty. If we were reviewing this case in the first instance, or under a less deferential standard, we likely would not have reached this conclusion. But our standard for viewing an arbitrator's decision is very deferential: We review for gross error. And it was not gross error for the arbitrator to conclude that the Department did not have just cause to terminate the grievant and that a lesser but still severe penalty, a sixteen-month suspension without pay, was sufficient discipline.

While the issues relating to the arbitration award were being addressed, the Alaska Police Standards Council was independently seeking to revoke Parcell's police certificate. That effort was stayed while the litigation over the arbitrator's award was proceeding, but after the Court's decision the Council renewed its efforts. The issue before the Council was whether Parcell had been dishonest in connection with the investigation  and lacked "good moral character," a basis for revocation of a police certificate. Relying on the facts as described in the Supreme Court's opinion, a hearing officer found that the Department had not met its burden of proof. While finding Parcell's conduct "egregious, rude, and grossly offensive" the Hearing Officer found the evidence insufficient to establish a lack of good moral character. On review, the Council rejected the conclusion of the Hearing Officer and found that Parcell's inappropriate and sexually offensive remarks and evidence that he had been dishonest during the Department's investigation warranted revocation of his certificate.  Parcell's appealed and the Superior Court reversed. It concluded that it need not defer to the Council's determination  of what constituted good moral character. It agreed with the hearing officer and found the Council's contrary conclusion unreasonable. 

The Alaska Supreme Court has now reversed the Superior Court. Alaska Police Standards Council v. Lance Parcell. It concluded that this case (like the earlier appeal of the arbitrator's award) turned on the level of deference due to the underlying decision. The Court summarized its decision:

A police officer's employment was terminated for abuse of alcohol, sexually offensive remarks made to two female officers, and alleged dishonesty during the subsequent police investigation. An arbitrator concluded that terminating the officer's employment was an excessive penalty and ordered the officer's reinstatement. The superior court affirmed the arbitration decision and we affirmed the superior court based on the deference that must be given to an arbitration decision. However, the Alaska Police Standards Council revoked the officer's police certificate after concluding that the officer was not of good moral character and was dishonest. The superior court reversed the decision to revoke, substituting its judgment for the Council's. But because the Council's decision, like that of the arbitrator, is entitled to deference, we reverse the superior court's decision and affirm the Council's decision to revoke the officer's police certificate.

It found that the Council's decision was not unreasonable and concluded that the fact that the Court had previously held that  there was no legal requirement to terminate a police officer's employment for minor acts of dishonesty  (State v. Pub. Safety Employees Ass'n) did not limit the Council's discretion to terminate the officer's certificate. Applying the same deferential standard of review it had on the appeal of the arbitration award, the Court deemed the Council's decision reasonable and entitled to affirmance.

A somewhat similar situation is discussed at  Fired, reinstated, then fired again - court rejects effort to enforce Arbitrator's award


Sunday, April 19, 2015

Arbitrator finds conduct of Sheriff's deputy in stalking former fiancee provides just cause for dismissal

Grievant was employed as a deputy on the Anoka County Sheriff's Office. During his employment he began a romantic relationship with another deputy. After two years, the second deputy resigned her position with the Sheriff's office and accepted other employment. The relationship continued, however, and the two ultimately became engaged and moved in together. A wedding date was set, but approximately one month before the wedding the prospective bride called off the wedding and asked grievant to move out of her home. As described in Arbitrator Eugene C. Jensen's award:

The Grievant’s behavior toward A.P. [the former fiancĂ©e] following their “break-up” resulted in a 2/26/2014, Harassment Restraining Order (HRO), an internal affairs investigation by the Employer, a criminal investigation by Chisago County, a 5/13/2014, criminal complaint for stalking, with a judges determination that there was probable cause to support the charge, and the Grievant’s termination on 6/4/2014.

Grievant was accused, inter alia, of sending hundreds of text messages to A.P. the day after the breakup, showing up at her door bearing jewelry he wanted to return to her despite having been told to stay away from her, and violating a Harassment Restraining Order. Grievant was arrested for the violation of the HRO and spent two nights in jail.

Pursuant to a plea agreement grievant agreed to plead guilty to stalking in exchange for dismissal of the HRO violation. The agreement also provided for a stay of adjudication, a stayed jail sentence of 365 days, a mental health evaluation, and two years probation. Upon successful completion of probation, grievant would be able to seek to have the charges expunged.

Despite the Union's arguments that several of the allegations against grievant were not proven, that the stalking with which he was charged was not "stalking in the traditional sense" and that the County erroneously accepted the former fiancĂ©e’s claim that she "never wavered" from her decision to end the relationship, Arbitrator Jensen upheld the termination. He found that grievant's actions were of the type to bring discredit to the Sheriff's office and to erode the essential trust between a sheriff's office and one of its sworn peace officers. He also found that while grievant had "gained some insight" into his behaviors and was unlikely to violate probation, he continued to minimize his behavior and to shift responsibility back to the victim.

Finally he concluded that a second chance was unwarranted, observing:

...although I am optimistic that the Grievant would not let this occur again in the future, the actions that led up to the charge of gross misdemeanor stalking -- those actions that were validated by two independent investigations -- are such that the Arbitrator would be remiss if he put the Grievant back to work, either now or following a protracted suspension. His return to work would further violate the Employer’s mission statement: to operate in a “manner that preserves the public trust.” The Anoka County Sheriff’s office did what was necessary to preserve that public trust: it terminated the Grievant’s employment. For the sake of the Sheriff’s Office’s reputation alone, the Employer needed to set distance between itself and the Grievant’s actions. While it is a shame to lose a fully trained and long-serving deputy, the Arbitrator agrees with the Employer’s decision.

Arbitrator Jensen's award can be found here.