Sunday, January 10, 2016

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


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

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

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

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

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

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

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

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




Sunday, January 3, 2016

Arbitrator's finding that police officer's use of force was reasonable precludes public policy challenge to reinstatement award

On March 30, 2012, Arbitrator Jane Wilkinson ordered the reinstatement of Portland police officer Ronald Frashour. Officer Frashour had been dismissed because of the Chef's conclusion that he had used  excessive force in his fatal shooting of an individual who turned out to be unarmed. The Chief deemed Officer Frashour's conduct contrary to the Department's  use-of-force policies. Arbitrator Wilkinson's award is discussed here. She concluded that the City had failed to establish that the officer's conduct was objectively unreasonable or contrary to the Department's policies. 

The City announced that it would not comply with the arbitrator's award (Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour). It claimed, inter alia, that the award was contrary to public policy. The Portland Police Association filed an unfair labor practice charge with the State's Employment Relations Board. The ERB upheld the award (here), holding that in light of the Arbitrator's findings that there was no basis to the claim the Frashour had violated Department policy there was no public policy bar to his reinstatement. The City appealed the decision to the Oregon Court of Appeals. The City's claims, and the Union's response, are discussed in Police discipline and public policy.

The Court of Appeals has now affirmed the ERB's decision. Portland Police Assn. v. City of Portland. The Court agreed with the ERB's analysis that because the arbitrator found that Frashour "was not guilty of the misconduct for which discipline was imposed" there was no violation of public policy in enforcing the award. The Court also rejected the City's alternate argument that the arbitrator's failure to defer to the decision of the Chief was, itself, contrary to public policy:
 



In the city's view, [the ERB's] approach was flawed because it failed to consider that the arbitrator's conclusion that Frashour did not engage in misconduct itself violated public policy, specifically, the public policy, "clearly defined in statute and case law, that deference be given to the determination by the Chief of Police of the City of Portland that Officer Frashour's use of deadly force violated the City's policies." As a result, according to the city, the award was unenforceable under ORS 243.706(1), and the board therefore erred in concluding that the city had committed an unfair labor practice when it refused to implement the award.


The Court noted that "the statute does not appear to impose that same 'public policy' limitation on the arbitrator's review of the misconduct determination itself."  Affirming the conclusion that once the arbitrator concluded that the officer had not committed the misconduct alleged the public policy exception to enforcement of the arbitrator's award simply didn't apply, the Court observed:

the city has failed to identify statutes or judicial decisions "clearly defin[ing]" a public policy requiring deference to a police chief's determination regarding whether an officer has violated a city's use-of-force policies. See Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or.App. 19, 24-25, 61 P.3d 970 (2003) (for ORS 243.706(1) to bar the enforcement of an arbitration award, "the award must order something that either the legislature or the courts have determined to be contrary to public policy").


The City is currently reviewing the decision and has not yet announced whether it will appeal further. Portland considers taking Frashour's reinstatement order to state Supreme Court.

Sunday, December 27, 2015

Moral turpitude, just cause and an arbitrator's authority

The New Hampshire Supreme Court has affirmed a lower court's decision vacating an arbitrator's award overturning the termination of a University professor (the grievant).

The professor had intentionally lowered the evaluation students had given lecturer at the University of New Hampshire. He erased markings on the evaluations and entered different (and lower) ratings. The University concluded that this conduct amounted to an act of "moral turpitude" within the meaning of the cba and terminated his employment.

The cba defined just cause as "encompass[ing] professional incompetence, deliberate neglect of duty or moral turpitude." The cba further provided that "[i]f charges involving moral turpitude are sustained, the bargaining unit member may be terminated immediately and the bargaining unit member shall not be entitled to receive further pay or benefits.

The dispute was grieved, and Arbitrator Gary Altman overturned the termination. (Arbitrator overturns decision to fire UNH professor). Arbitrator Altman concluded that grievant had engaged in an act of moral turpitude, but nevertheless, because of several mitigating factors, found the termination did not comport with principles of just cause. H remanded the matter to the parties to negotiate an appropriate level of discipline.

The University sought to set aside the award as in excess of the Arbitrator's authority, and the superior court agreed, vacating the award.(UNH professor dismissed from job). The Union appealed, and the NH Supreme Court has now affirmed that decision. 

The Court concluded that:


  ... having found that [grievant] engaged in conduct constituting “moral turpitude” within the meaning of Article 14.2.1, “the arbitrator was barred from further inquiry because such additional probing constituted ignoring the plain language of the contract.” Poland Spring Corp., 314 F.3d at 34 (quotations and brackets omitted). “[O]nce an arbitrator finds that an employee has committed an act specifically listed in the collective bargaining agreement as providing just cause for termination, the arbitrator is not free to fashion a separate remedy apart from the one provided by the parties’ agreement.” Id. “If the parties intended mitigating circumstances to affect whether [moral turpitude] constitutes just cause for termination, then they would have expressed their intent in the contract.” Id. at 35. Because the arbitrator found that [grievant]  engaged in “moral turpitude” and that finding is not challenged on appeal, his decision to overturn UNH’s decision to terminate [grievant's] employment “due to mitigating circumstances impermissibly substituted his own notions of industrial justice over those established by the contract.” Id. 

The Court rejected the Union's argument that because the cba provides that a bargaining unit member "may" be terminated it did not preclude that Arbitrator from fashioning a remedy in accord with general just cause standards. The Court found that the cba expressly enumerated moral turpitude as a proper basis for discharge and that the arbitrator exceeded his authority by overturning that decision. 

The Court's decision (University Systems of New Hampshire Board of Trustees v. Dorfsman) can be found here. Two earlier post address court decisions finding that arbitrators did not exceed their authority in rejecting termination where the cba provided that certain conduct was "subject to discharge" or "subject to termination." See "Subject to discharge" and progressive discipline and "subject to termination" does not equal automatic termination.

Sunday, December 20, 2015

Arbitrator upholds discipline of E-911 dispatcher for delayed dispatch

Grievant was employed for eighteen years with the County of Onondaga's Department of Emergency Communications. On the morning of November 29, 2012 she was working as a fire dispatcher. After receiving a report from the 911 call taker about an individual reporting trouble breathing, grievant appropriately dispatched a rescue unit. Approximately 22 seconds later the caller reported that he smelled smoke. The call taker coded the report as a residential fire and the information was transmitted to grievant. Contrary to protocol, Grievant did not dispatch fire equipment but sent another dispatcher to check with the call taker. There were several more reports which, according to the County, should have resulted in grievant dispatching fire equipment, but grievant failed to do so until approximately five minutes after the initial call.

The County issued a written reprimand, alleging several violations of County work rules, including a failure to follow job instructions, failure to transmit pertinent information in a timely manner and failure to update events as needed.

Rejecting the grievance challenging the warning Arbitrator Gordon Mayo noted:

Firefighting is not an exact science, and each structure fire poses its own problems in fire suppression. Nonetheless, this five minute delay in proper dispatching may have contributed to the caller's demise, as he did not survive the fire. 

The Arbitrator rejected grievant's claim of confusion, and her reliance on a claimed "five minute rule." Upholding the reprimand he concluded:

Mistakes happen in the workplace. Except in extraordinary circumstances, such errors do not result in death. An E-911 Center is different - there life and death outcomes depend upon the dedicated employees who staff these facilities. [Grievant] has been by all accounts a fine employee over her eighteen year career. Here, however, her failure to act in accordance with normal protocols may have contributed to a man's death. As a result, the penalty of a written reprimand is an appropriate punishment. 

Arbitrator Mayo's award can be found here.


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.