Sunday, December 14, 2014

Arbitrator upholds dismissal of police officer for "untruthfulness" concerning DUI stop

FoxTampaBay reports on a recent decision upholding the dismissal of the head of Tampa PD's DUI unit for being deceptive concerning a dui stop. The report links to the award of Arbitrator John Popular here.

On January 24, 2013 Grievant received a tip from a friend (Attorney Adam Filthaut) concerning a potential dui scenario. Filthaut was reporting on the conduct of C. Phillip Campbell, an attorney adverse to Filthaut and his firm in a hotly contested local trial. As a result of the tip, grievant assigned two officers to stake out the bar involved and to be on the look out for Campbell. Grievant and Filthaut exchanged thirteen text messages before Campbell was pulled over. Another officer performed the dui tests, and arrested Campbell. Grievant initiated text and phone conversations with Filthaut advising him of the arrest. Exchanges between the two continued into the next day, with grievant asserting that only then did he then became aware of the nature of the relationship between Filthaut and Campbell.

The arrest received media attention and grievant spoke with the Chief on the 24th, but failed to advise him of the extent of his friendship with Filthaut. He acknowledged exchanging a "few" text messages with Filthaut. On the same day, grievant testified in connection with a motion for mistrial in the pending litigation. In his testimony grievant claimed that he had no contact with Filthaut after the arrest. Over the next several months the Department conducted an investigation of grievant's conduct. In March the Chief learned that in fact grievant and Filthaut had exchanged 96 text messages. On September 27, 2013 grievant's employment was terminated for untruthfulness.

The Department's policy on truthfulness, contained in a General Order dated May 6, 1994, provided:

As many of you are aware, under prior departmental administrations, the subject of untruthfulness has generated some controversy as to the appropriate level of discipline to be administered in such cases. This General Order is intended to provide a clear understanding of the Department's views on the seriousness of untruthfulness and the manner in which such cases are and will be handled in the future. The public, as well as myself demand the highest integrity and honesty of police officers....
Therefore, the General Order will confirm that untruthfulness is not tolerated by this Department and it will continue to be treated as among the most serious offenses which an employee can commit. Any sustained incident of untruthfulness of any pending or future cases will be treated in accordance with that philosophy and subject the employee to immediate termination. ...

The termination was grieved, and on September 20, 2014 Arbitrator Popular issued his award. After reviewing the evidence, he concluded:

In the arbitrator's opinion (1) the Grievant became an unwitting accomplice in the collusion of four attorney's attempt to "set up" Mr. Campbell for a DUI arrest, (2) was untruthful about the volume of communications between himself and Mr. Filthaut on January 23d, (3) misrepresented his personal relationship with Mr. Filthaut, and (4) deliberately omitted these facts in his report to Chief Castor.. In addition, his January 25, 2013 Court testimony, denying phone contact with Mr. Filthaut after the arrest, did not square with what he told the Chief. ... Given the events that unfolded between January 23 and 24th, he had to be aware that this could result in further investigation, and undoubtedly escalate to being a significant problem for both himself and the Tampa Police Department. Between the January 23rd arrest and January 25th court appearance he had a window of opportunity to truthfully provide all of the facts to his superior officers and/or the Chief. He elected not to do so. His failure to communicate all the facts to Chief Castor on January 24th, or thereafter, proved to be intentionally deceitful, therefore, is deemed "untruthful".  

Arbitrator Popular found no basis for the Union's argument that progressive discipline should trump the policy of immediate termination set forth in the Department's policy. He noted the absence of any evidence that the City had ever imposed any lesser penalty for untruthfulness since the policy was issued, and concluded that immediate termination must be deemed to be the "unchallenged norm" for cases of untruthfulness.

Sunday, December 7, 2014

Medical marijuana, arbitration and the courts

In two recent decisions courts have vacated arbitrators' awards reinstating employees dismissed for use of marijuana. Both cases discuss the impact of medical marijuana legislation.

In Freightliner v. Teamsters Local 305 the U.S. District Court for Oregon granted the Company's request to vacate the award of Arbitrator Carlton Snow based primarily on the Arbitrator's reliance on the Oregon Medical Marijuana Act in contravention of what the Court believed to be the governing language of the cba.

Grievant had been employed as a material handler. After his involvement in a forklift accident he was required to submit to a drug test. On the day he took the drug test, grievant informed the Company that he had a prescription for medical marijuana that he had obtained a couple of months earlier. The results of the drug test showed that grievant was "under the influence" as defined in the Company's drug policy, which was expressly incorporated into the cba. The policy provided that being "under the influence" was cause for suspension or termination. As a result of the positive result, and his claimed failure to comply with the Company's notification requirement for prescription drugs, grievant's employment was terminated.

The termination was grieved and submitted to arbitration before Arbitrator Snow. Arbitrator Snow found that grievant was in fact under the influence as defined in the policy, but found further that there was no evidence that his work performance was impaired. According to the Court, the Arbitrator concluded that "in light of [Oregon's Medical Marijuana Act] an employer cannot 'discipline an employee (1) who ingests marijuana pursuant to a valid prescription, (2) does so on his or her own time, and (3) reports to work in an unimpaired state of being." Accordingly the Arbitrator upheld the grievance and ordered the grievant's reinstatement. Freightliner sought to vacate the award on the basis that the Arbitrator had exceeded his authority by relying on the Medical Marijuana Act, and that the award violated public policy.

In ruling on cross motions, the Court concluded that the Arbitrator "cited no credible internal authority [in the cba] justifying his reliance on the Marijuana Act and resultant disregard of the CBA's plain language about marijuana use." The court further concluded that the Arbitrator misread the law to provide affirmative workplace protection, noting that he:

seemed to suggest ... the Act permits parties to a CBA to regulate marijuana use only insofar as employers may forbid actually impaired employees from working. Snow, however, cited no statutory authority for the proposition the Act restricts how parties to a CBA may choose to treat marijuana use. Nor did Snow meaningfully link that proposition to the Act's workplace provision. Instead, he effectively applied his own notions of what the law should be, an approach tantamount to "ignoring" the law.

Finding that the award did not represent a "plausible" interpretation of the contract the Court granted Freightliner's motion to vacate. In light of this finding, the Court did not reach the public policy question.

In contrast, public policy was the primary basis for the decision of the Connecticut Superior Court in State of Connecticut v. Connecticut Employees Union Independent. Grievant had been arrested for smoking marijuana while at work in a state owned vehicle. His employment was terminated, and the termination was grieved and submitted to arbitration. The arbitrator found that the termination was not "within a proper range of progressive discipline" and modified the termination to a six month suspension and ordered the grievant's reinstatement. The State sought to set aside the award "on the grounds that the award violates the State's public policy on drug use while on state duty and operating a state owned vehicle."

The court first determined that there was a well defined public policy against the use of marijuana. It rejected plaintiff's contention that this public policy was diluted because of the state's implementation of its medical marijuana law. The court observed:

Although the defendants are accurate in stating the law, nothing in the records indicate that the grievant was prescribed marijuana. The arbitrator, in his award and opinion, makes no finding that the grievant was prescribed marijuana or that it was medically necessary for him to use marijuana to treat his depression and anxiety. As this court's review is limited to the facts as found by the arbitrator, the arbitrator's award cannot be confirmed on this ground.

On the merits the court concluded:

Similar to the findings of the arbitrator in AFSCME, Council 4, Local 387 , the arbitrator in the present case noted that the grievant's use of marijuana allegedly stemmed from "a number of stressors before and after the time he used marijuana." ... In addition, as noted by the court in AFSCME, Council 4, Local 387, AFL-CIO,, a progressive sanction of reinstatement suggested by the arbitrator in the present case would send the message that stress experienced in one's personal life somehow excuses the use of marijuana in the workplace. Thus, the arbitrator's award in the present case violates a clearly defined public policy.

Sunday, November 23, 2014

Pay for Snow Days - Part 2

With record snow falls in the news, it's appropriate to revisit an issue first discussed in January. The earlier post, Pay for Snow day?- Same city, same storm, different results, discussed two awards from the Connecticut State Board of Mediation and Arbitration reaching different results on claims for pay for days employees were instructed to stay home because of record snowfall.

Since those two decisions, the SBMA has issued at least two other awards, involving the same town, the same storm, but different bargaining units.

In Town of Wallingford and IBEW, Local 457 a panel chaired by Arbitrator Douglas Cho sustained the Union's grievance. The award, covering two separate units represented by the Union, concluded:

Both agreements clearly set certain wages and hours and establish a normal work week as 40 hours worked Monday through Friday for Electric Division employees. Once the parties have agreed to certain hours and wages, the Town does not have the unilateral authority to decide not to pay its employees for work scheduled during the established days and hours. There is no specific or general provision allowing the Town to require employees to use vacation time in order to get paid for days the Town decides to close due to weather-related conditions.

While observing that there were not many examples of prior weather related closings which might establish a past practice, the majority noted there were no examples of prior weather related closings for which employees were not paid.

The second award, Town of Wallingford and AFSCME Co. 4, Local 1183, decided by a panel chaired by Arbitrator Nestor Diaz, reached a similar result. The majority concluded that while the circumstances were extraordinary, and the Town acted in good faith, "this does not mean that the Town has a right to deprive employees of a day's wage and instead urge them to take a vacation day to complete a week's wages."

Sustaining the grievance, the majority ordered the Town to make whole employees for lost wages or vacation time used.

Sunday, November 16, 2014

Reinstatement of police officer fired for dishonesty regarding personal conduct not violative of public policy

Grievant was employed as a police officer for the City of Sandusky, Ohio. He worked the night shift, which was supervised by a Sergeant who was also a personal friend. Grievant was approached by the Sergeant's fiancee who informed him that she and the Sergeant were "swingers" and that she wanted to have a sexual encounter with him. She advised the grievant that the Sergeant was aware of her request and had no objection to it. The Sergeant subsequently informed grievant that he knew of his fiancee's request and confirmed that he had no objection. Grievant turned down the offer.

Several months later the Sergeant's now wife began texting grievant. She and grievant began exchanging sexually explicit texts and photos. The Sergeant became aware of these texts and became angry that grievant had been communicating with his wife without his knowledge. He informed two higher level officers of his belief that grievant had been sleeping with his wife. The Department began an investigation and grievant described the solicitation he had received. However, on at least two occasions, he denied the existence of any explicit photos before ultimately acknowledging their existence.

The City terminated grievant's employment and the Union pursued the matter through arbitration. Arbitrator Robert Stein, while finding a basis for some discipline because of grievant's alleged insubordination, overturned the dismissal, finding it without just cause.

The City brought an action to vacate the award, contending, among other bases, that reinstatement of a police officer who had been dishonest during the investigation violated public policy. The Common Pleas court denied that request. The court initially noted that "the essence" of grievant's dishonesty involved off duty conduct and noted further that the Arbitrator had found no evidence that it had any direct negative impact on grievant's work performance.

Distinguishing other cases where the alleged dishonesty also violated criminal laws, the Court refused to vacate the award holding:

      Bearing in mind the standard of review which requires a reviewing court to make every reasonable indulgence to avoid disturbing an Arbitration Award, the Court cannot find it violates public policy to reinstate a police officer who was dishonest about something that was not job related, had no "direct negative impact on his work performance" and did not involve violation of a criminal statute.
      The Court finds that its review of an arbitration award must necessarily be very narrow. This Court cannot substitute its judgment for the judgment of the Arbitrator. The basis for vacating such an award are well established and very limited. Under the law, this Court cannot find that the Arbitrator exceeded his power or that public policy prohibits reinstatement, given the unique facts of this case. 

The Sandusky Register reports on the case here and here and links to the decision here.

(The City also terminated the employment of the Sergeant, for, among other reasons, "failure to display absolute honesty." Arbitrator Mary Jo Schiavone sustained the Sergeant's grievance and ordered his reinstatement. Arbitrator Schiavone's award can be found here.  The City did not seek to set aside that award.)

In another case, also addressing an issue of claimed dishonesty concerning off duty conduct, Arbitrator Norman Bennett rejected a claim that an Austin, TX officer had acted dishonestly in providing conflicting and contradicting statements to Internal Affairs during an investigation of his off duty actions while working security at a hotel. Arbitrator Bennett did so, however, for reasons of insufficiency of evidence without discussing whether there was a nexus to grievant's employment. The Austin Statesman reports on the case and links to the decision here.

Sunday, November 9, 2014

Court-Arbitrator erred in awarding back pay to Union as penalty

A court has vacated a portion of an arbitration award ordering General Mills to pay almost three weeks of back pay, calculated at the grievant's rate, to the Union as a penalty for the Company's failure to timely provide information to the Union in a termination case.

The grievant was an employee who had been dismissed for allegedly falsely reporting her time of arrival on three occasions to cover up tardiness of from one to three minutes. The issue before the Arbitrator was whether there was just cause for that dismissal, and, if not, what the appropriate remedy would be. At the hearing the Union argued, among other points, that the Company had failed to have grievant sign Attendance Review/Reports, and had failed to timely provide certain documents to it.

Arbitrator Barbara Doering concluded that while the Company had done as the Union alleged, these actions didn't change the fact that the grievant had "knowingly and with intent to deceive" entered the wrong start time on the documents. However because she found that no one before had been fired for "falsifying" their time in, and because it was not clear that the certification language on the documents sufficiently warned the employee that failure to enter the actual start time would result in termination, the arbitrator reduced the termination to reinstatement with one week of back pay. The Arbitrator also ordered that General Mills pay to the Union three weeks of back pay:

which was the amount of time from 2/6/12 [the date of the initial meeting with the grievant] to 3/5/12 [grievant's last day of work] that the Company took to consider and investigate -for the fact that [grievant's supervisor] did not have grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of the relevant documents at the suspension meeting.

The Company did not challenge the Arbitrator's decision on the termination, but did seek to set the award of back pay to the Union.

While noting the strong presumption against overturning awards, the Court nevertheless vacated this portion of what it described as the Arbitrator's "strange" decision. It determined that this issue was not encompassed by the stipulated issue and that there was no contractual basis for the award of back pay to the Union. The Court concluded:

The arbitrator's decision to punish the company for not providing documents by awarding the Union money in an amount calculated by the amount of wages [grievant] would have earned from the date the company first met with her to discuss the issue until the date she was discharged (even though [she] had actually been paid for the days she worked during that time period) sounds to this Court like the arbitrator's own brand of industrial justice. Because the award to the Union was outside the scope of the issue the parties agreed to arbitrate and because the award does not draw its essence from the Master CBA, the Court hereby vacates the portion of the August 10, 2013 arbitration decision that awarded money to the Union

The Court's decision in General Mills, Inc. v. BCTGM Local 316G can be found here.

Sunday, November 2, 2014

Unsuccessful effort to set aside arbitrator's award not a basis for an award of attorneys' fees

SEIU Local 24/7 prevailed in an arbitration claiming that Pacific Gas and Electric had improperly denied security officers compensation for meal periods when they were subject to being on call or were required to respond to emergencies. PG&E sought, unsuccessfully, to set aside the arbitrator's award on the basis that the Arbitrator had ignored relevant contract language. The Union then sought an award of its attorneys' fees in the amount of $146,582.

The District Court, in a decision here, rejected the Union's request for an award of attorneys' fees. The court found no evidence that the Company's position was frivolous or undertaken in bad faith.

The Union appealed, and the Ninth Circuit has now affirmed. The Circuit Court noted:

Attorneys' fees are appropriate as a sanction when a party engages in bad faith or engages in conduct tantamount to bad faith. ... A refusal to obey an arbitral order may constitute bad faith conduct. ... However, a challenge to an arbitral order on the grounds that an arbitrator did not apply or misinterpreted the underlying contract does not necessarily constitute bad faith.

The Court's opinion is available here.

Sunday, October 26, 2014

Arbitrator overturns suspension of police officer disciplined for alleged use of excessive force

Arbitrator Michael Cavanaugh, chair of a unanimous three person panel, has sustained a grievance filed on behalf of a Seattle police officer challenging his eight day suspension for claimed use of excessive force.

The incident in question arose during an investigation of an individual believed to have been involved in a hit and run. Grievant was one of two officers who initially stopped the suspect. These two officers were then joined by a third. While inspecting the suspect's vehicle grievant observed what he believed to be a failure of the suspect to comply with the requests of the other officers. Grievant approached the suspect and using a "command voice" (a tactic he had been trained to use) ordered the suspect to "shut your mouth and just sit there." A struggle ensued as the officers attempted to handcuff the suspect, and in the course of the struggle the suspect spit on the officers. Grievant struck the suspect with his forearm and, after the suspect was on the ground, struck him with a closed fist.

A review of grievant's conduct was conducted, and a Sergeant, and acting Lieutenant and a Captain concluded that greivant's actions were reasonable and within policy. The Captain however referred the matter to the Office of Professional Accountability for a "complete and thorough review."

The OPA found grievant's use of force unjustified and unnecessary. It found that he had unnecessarily escalated the situation by injecting himself in an aggressive manner and that his use of force was "premature".

Consistent with the recommendations of the OPA, the Chief suspended grievant for a period of eight days. The Seattle Police Officers' Guild grieved and ultimately arbitrated this discipline.

Initially Arbitrator Cavanaugh addressed the nature of the dispute:

Allegations of excessive force by police officers require consideration of several significant - and often conflicting - public policy and political considerations, each of which is critically important in its own right, e.g. public safety, officer safety, the rights of individual members of the public, and the health of relationships between the SPD and the communities it serves - not to mention the City's compliance with a settlement agreement with the United Sates Department of Justice resulting from claims the SPD has too often used excessive force. 

The Arbitrator noted that just cause for the discipline could be established:

only if facts sufficient sufficient to support the discipline have been established by a preponderance of the evidence in the record, and even then, only if the process used by the City comports with accepted notions of due process and with concepts of equal treatment when considered in light of the discipline imposed on other officers for similar established offenses.

Applying these standards, Arbitrator Cavanaugh concluded that the City had failed to meet its burden. He determined that what the OPA had deemed to be improper escalation was a legitimate, if unsuccessful, attempt to obtain the suspects compliance without the use of force. He also noted that while what the Chief had described as tactical errors had been made, these errors were equally the responsibility of the other officers on the scene and there was no evidence that they had been disciplined. Finally, he concluded that the evidence failed to establish that the blows delivered by grievant were excessive. With regard to the first, he found an absence of evidence that any reasonably available lesser level of force would have been effective in ending the suspect's assault (i.e. the spitting), and with regard to the second, he found that the City had failed to effectively counter grievant's testimony that the suspect was continuing to resist while he was on the ground.

Finding a lack of just cause for the discipline, the Arbitrator ordered the City to remove the suspension from grievant's record and make him whole for lost wages.

The Seattle Times reports on the award Panel overturns suspension of SPD officer in use-of-force case and links to the award of Arbitrator Cavanaugh here.