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. 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." 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 fiancée] 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 fiancée’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.

Sunday, April 12, 2015

Police officer, special needs child, use of force and a clash of cultures

Grievant was employed as a police officer by the City of Bloomington, Illinois. He responded to an incident at a local school to address an issue with an out of control student. After that issue was resolved, grievant was talking with one of the teachers when he heard "loud screaming and a thumping sound" coming from the teacher's classroom. The officer entered the classroom where a seven year old was being restrained by the school's psychologist. The psychologist first became aware of the officer's entrance when grievant told the student to be quite, he was giving the officer a headache. Following school protocol, the psychologist relinquished control of the student to the officer. Grievant lifted the student and briefly held him against a wall. There was a dispute about whether he lifted the student by his coat or by his neck. He then "very intently" placed the student in a nearby chair. After the student delayed responding to a direction to go to the principal's office grievant carried him there and "very roughly" placed him in a chair. Acting in part on a complaint from the student's father the City terminated grievant's employment for what was alleged to be his "overly aggressive" handling of the student.

The Policemen's Benevolent and Protective Association arbitrated the termination, and Arbitrator Jeanne Vonhof sustained the grievance. Arbitrator Vonhof concluded that grievant's conduct was "objectively reasonable" and that while it would have made sense in retrospect for grievant to have asked more questions and gathered more information before he entered the classroom [grievant was unaware that the student was a special needs child] he was "following his training and acted quickly and instinctively in taking control" of the student. The arbitrator found insufficient evidence that grievant had lifted the student by his neck or restricted his breathing in any way. She found grievant's actions consistent with a "soft-empty-hand technique" authorized by the Department's use of force guidelines and concluded that the dispute arose from a failure of communication and a "clash of cultures" between that of the school staff and that of the police .  Accordingly she sustained the grievance and ordered grievant's reinstatement. She did conclude that a one day suspension was appropriate for grievant's failure to file a use of force report as required by Department policy.

The City moved to set aside the award. It argued, inter alia, that the award violated a well-defined and dominant public policy of protecting the safety of school age children and preventing use of excessive force by police officers. The trial court vacated the award, finding it violated the public policy of ensuring the welfare and protection of minors and that it effectively condoned the actions taken by grievant and indirectly encouraged similar behavior in the future.

The Appellate Court of Illinois has now reversed that decision, effectively confirming the award. While agreeing that there was a strong public policy concerning the protection and welfare of minors, the court noted that the Arbitrator's found as a fact that no misconduct had occurred. Similarly it rejected the City's claim that the Arbitrator had failed to make any findings that the grievant would not repeat his actions or offer any reassurance that grievant posed no future risk. Given the Arbitrator's factual findings, the Court found the City's argument unpersuasive, noting:

Here, no finding regarding grievant's remorse or likelihood to reoffend could be made because no misconduct was found in the first place. Additionally, the arbitrator found (1) grievant would not have intervened had he known more about N.A.'s needs and behavioral issues; (2) Bloomington police officers would rarely encounter an "out-of-control, combative[seven-year-old]," similar to this child; and (3) this incident was largely the result of a "clash of cultures" where, on one hand, school personnel are trained to passively wait for a student to deescalate and, on the other, police officers are trained to act quickly and efficiently to dispel any possible threat to the safety of others and property. Based on these findings, the arbitrator concluded the staff at Stevenson and the Department should reevaluate their policies to make sure an incident such as this one does not recur. By encouraging the two entities to develop better policies for handling disruptive juveniles, the arbitrator provided the reassurance called for under AFSCME, and we are obliged to affirm the award.

The Court's decision can be found here.

Sunday, March 29, 2015

Award of back pay to firefighter who let certification lapse doesn't violate public policy

Grievant was employed as a firefighter by the City of Akron. His employment was terminated because of his failure to comply with the City Charter which required him to reside in the City. After grievant's termination, the Ohio Supreme Court upheld a State statute effectively abolishing residency requirements for municipal employees. The challenge to the statute ultimately upheld by the Supreme Court was being actively pursued at the time of grievant's termination.

Following the Court's decision, the City offered to reinstate grievant without back pay, an offer grievant and his union refused. The grievance was presented to an arbitrator in two stages. In the first the Arbitrator concluded that the termination was without just cause and ordered that grievant be reinstated and made whole for lost earnings. In a second hearing the Arbitrator determined the amount of back pay due was $251,421.01. The arbitrator concluded that had grievant provided better proof and documentation he was undoubtedly entitled to more.

The City filed an action to modify or vacate the back pay award. It challenged the award (unsuccessfully) on several grounds. One of the bases for the City's challenge was its claim that the award violated public policy. This public policy argument was premised on the City's claim that grievant had let his firefighter certification lapse for some period following his termination. The lower court, and now the Court of Appeals of Ohio, rebuffed this effort. The Court of Appeals noted:

In support of its position that the trial court should have vacated the back pay award on public policy grounds, the City directs our attention to various sources that require firefighters and EMTs to maintain certification as a condition of employment. The problem with this position is that the award at issue did not require the City to reinstate [Grievant] despite his lack of certification. Instead, the arbitrator awarded [Grievant] back pay for the period during which he had determined that the City had wrongfully terminated his employment. It is true that [Grievant] allowed his certification to lapse during a portion of this timeframe. This Court must emphasize two things, however. First, there is no documented and well-defined public policy that prohibits the payment of back pay to a wrongfully terminated firefighter whose certification lapsed during his unemployment. Second, and of equal significance in the context of this case, is the fact that the City cannot use the cloak of public policy to seek a review of the merits of the arbitration award. In determining whether an award should be vacated on public policy grounds, the inquiry is focused on the face of the award, and "[a] court is not authorized to revisit or question the fact-finding or the reasoning which produced the award."

The Court noted that testimony about grievant's duty to mitigate his damages and the circumstances under which he had let his certification expire had been presented to the arbitrator. The arbitrator, however, viewing the circumstances together with the "questionable legality" of the City's actions, determined back pay was warranted. 

In a decision here the Court affirmed the judgment of the lower court enforcing the award.