Sunday, February 24, 2013

A noose, cluelessness and public policy

The Supreme Court of Washington has refused to overturn an arbitrator's award reducing the discipline of an employee who had hung a noose in the workplace from termination to a twenty day suspension.

The arbitrator found that the Grievant had hung the noose as a prank directed at an older white coworker. An African American employee saw the noose and reported it. The arbitrator recognized the demeaning and hostile nature of a display of a noose in the workplace, and the employer's legitimate interest in expecting employees to be aware of that effect and to refrain from such a display. Nevertheless, he found  Grievant's "impression" of a noose was not racial, but rather derived from "Cowboys and Indians." In this regard the arbitrator found grievant "more clueless than racist." In light of this conclusion, and grievant's 12 years of service with no history of performance problems, the arbitrator concluded that termination was too severe a penalty and reduced the discipline to a twenty day suspension.

The employer sought to vacate the award, contending that the award violated  public policy,  and the superior court granted the motion to vacate. The lower court determined that the award violated the public policy against harassment in the workplace. It then went on to order its own remedy, which included a six month suspension, a letter of apology, attendance at diversity and harassment training and immediate termination for any violation of the employer's anti harassment policy in the next four years.

On appeal, (discussed here), the Appellate Court agreed that the discipline imposed was too lenient, and improperly minimized society's interest in preventing this type of conduct and interfered with the employer's ability "to discharge its duty" to prevent future acts of discrimination. The court determined, however, that the lower court erred in imposing its own remedy and should have remanded the case back to the arbitrator.

The Union appealed this decision and the Washington Supreme Court reversed. The Supreme Court first noted that "We only review the arbitrator's award and not the underlying conduct." While noting the "terrible and tragic history" history of the noose, and condemning "in the strongest terms possible" the threats and racial violence symbolized by it, the Court concluded that it was bound by the arbitrator's findings of fact. The Court noted:

 As a result, we must accept the arbitrator's findings regarding [Grievant's] understanding of the
symbolism of the noose, as well as the findings on the effect of the noose on the other
employees in the workplace. When we take into account the specific circumstances of
this case, we cannot say that a 20-day unpaid suspension would not provide sufficient
discipline to cause this or other employees to understand the serious nature of a noose
in the workplace and thus prevent a similar incident in the future.
       We reiterate that we find [Grievant's] actions to be ignorant and unacceptable and
that our analysis in this case is limited to determining whether the arbitrator's award is
so lenient that it violates the public policy against racial harassment. We do not
determine whether a 20-day suspension is the appropriate punishment for [Grievant's] actions or whether he violated antidiscrimination laws either of which would be analyzed under a very different legal framework.
 
Accordingly, the Court reversed the decision of the lower court and held that the arbitrator's award was not contrary to public policy. It further "took the opportunity" to clarify (as had the Appellate Court), that a trial court vacating an arbitrator's award cannot impose its own remedy but should remand the matter to the arbitrator for further proceedings.

The Court's decision in International Union of Operating Engineers, Local 286 v. Port of Seattle can be found here.

Sunday, February 17, 2013

New York High Court: Positive drug test doesn't compel termination

The New York Court of Appeals has rejected an effort by the Shenendowa Central School District Board of Education to vacate an arbitration award reinstating a bus driver who failed a drug test. Grievant, a ten year employee, had tested positive for marijuana after a random drug test. The arbitrator concluded that termination was too severe a penalty, and ordered grievant reinstated without back pay, subject to an evaluation by a substance abuse professional and a negative drug test. 

The Court initially noted that the parties' cba did not require a penalty of termination in these circumstances, and observed that the District did not have a zero tolerance policy.

The Court also rejected a suggestion that the award violated public policy, concluding:

 The ... determination that reinstatement with conditions was the appropriate penalty did not violate public policy (see Eastern Associated Coal Corp. v Mine Workers, 531 US 57 [2000]). "That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning  the penalty" (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 920 [2011]).

 The Court's opinion, In the Matter of the Arbitration between Shenendowa Central School District Board of Education and Civil Service Employees Association, Inc., Local 100 AFSCME, can be found here.

Sunday, February 10, 2013

Comcast unsuccessful in effort to set aside award

Courthouse News Service reports on a decision rejecting Comcast's efforts to set aside an arbitrator's award. Comcast claimed that the arbitrator exceeded his authority by reading into the cba a provision that had been eliminated. Back Pay for Broadband-Certified Comcast Staff.

Comcast and IBEW Local 827 were parties to a cba providing a 5% pay increase for employees possessing a broadband certification (BBC). That provision was included in Appendix B of the parties' agreement. Appendix B also included wage rate schedules, wage increases, and a ratification bonus. During negotiations for a successor agreement, the union ultimately agreed to the company's final proposal. Paragraph 6 of that proposal began "Replace Appendix B with the following..." and set forth new pay scales and wage increases. It did not include any reference to a broadband certification. While initially transmitting a draft of the new agreement which continued the BBC provision, Comcast claimed this was an error, and transmitted a new draft without the BBC increase provision. When Comcast refused to pay the BBC increase the Union grieved, and ultimately arbitrated the non payment.

The arbitrator found that the phrase "Replace Appendix B with the following" was ambiguous concerning the BBC issue, and sustained the grievance. Comcast sought to vacate that award, but the District Court in NJ rejected that claim. Noting the arbitrator's careful review of the record and the parties bargaining history, and the limited scope of review of an arbitrator's award, the court confirmed the award, observing:

The Court finds that while the Arbitrator did not have the authority to modify the MOA,
he was called upon to determine whether the Parties intended to eliminate the BBC Increase
provision from the CBA. In his decision, the Arbitrator reasoned that, based on the structure of
the MOA, the word "replace" "under no circumstances means literally replace."' ...The Arbitrator stated that "[ o ]n its face, what follows in paragraph 6 is not language fit to be inserted into a collective bargaining agreement. Rather, it is a rough outline of what was to be included in the new Appendix B, with much additional clarification and reorganization required."                                                   


The court concluded that "the Arbitrator's reasoning shows how the interpretation can rationally be derived from the agreement when considering all of the language of the MOA and its context."

Courthouse News links to the court's decision here.

Monday, February 4, 2013

Police officer who lost license to carry weapon properly terminated

Arbitrator Phillip Dunn has upheld the termination of a police officer who  lost his license to carry a weapon. The Quincy, Mass. Chief of Police had revoked grievant's license to carry, apparently for incidents arising from a dispute with his neighbors. Patriot Ledger: Quincy police chief revokes officer's gun permit. The City thereafter terminated the employment of grievant for, among other reasons, the revocation of his license to carry a weapon. The officer appealed that revocation to the Quincy District Court, and the court upheld the Chief's actions. Following the court's decision the parties agreed to submit  to the arbitrator the issue of whether the license revocation, standing alone, provided just cause for the termination.

The City maintained that it had a longstanding policy requiring officers to posses a valid license to carry, and argued that the arbitrator was without jurisdiction to review the Chief's decision to revoke the license. The Quincy Police Patrol Officer's Association noted that there was a separate process which would have allowed the grievant to carry a weapon, and that the mere revocation of the license was insufficient to support the termination.

Refusing to reverse the termination, Arbitrator Dunn concluded that "the record convincingly  establishes that the Department has consistently maintained for years the requirement that all Quincy police officers must posses a license to carry, as a condition of continued employment."  The arbitrator recognized that the authority of the Chief to decide grievant's suitability for a license, with review of that decision exclusively in the District Court on an abuse of discretion standard "does leave the employee with a distinctly less robust avenue for challenging his/her termination based upon a loss of LTC ...", but concluded that he did not have the authority to review that decision.

Accordingly, Arbitrator Dunn concluded:

The City for decades has required that the police officers in Quincy maintain a valid LTC, as a condition of continuing employment. The chief revoked the grievant's license [sic] LTC, the grievant appealed to the District Court, and the Court  affirmed the chief's revocation action. Given these circumstances, the City had just cause to terminate the grievant's employment, without consideration of the other bases for the termination.

PatriotLedger.com reports on the decision, Quincy cop's firing upheld; lack of gun license cited here.

Update:For a similar dispute with a different result see Award reinstating police officer without License to Carry weapon confirmed.

Friday, February 1, 2013

Court rules reinstatement of police oficer who lied violates public policy

Grievant was employed as a police officer by the town of Stratford, CT. He suffered from epileptic seizures, and experienced a seizure while on duty, striking two parked cars with his police vehicle. After his personal physician returned him to duty the town referred him to a neurologist for a determination of the conditions of return. The neurologist cleared grievant to return to work with the proviso that he be allowed to call out sick whenever he felt signs of an impending seizure. Reviewing the neurologists report, the town's hr director "discovered discrepancies" between the report and the medical information supplied to the town by grievant's personal physician. Contrary to the information obtained from his personal physician, grievant had apparently not informed the neurologist of two previous seizures, and had denied a history of alcohol "use/abuse". The town ultimately terminated grievant's employment for lying during an independent medical exam.

The union grieved the termination, and an arbitration panel reinstated grievant without back pay. The panel concluded that grievant's lying, while serious, was understandable, and concluded that the termination was excessive. The town sought to vacate the award as contrary to public policy, but the lower court disagreed, noting the limited standard of review of arbitration awards and the absence of "authority which requires dismissal of a uniformed police officer, in situations where that officer tells a deliberate untruth."

The town appealed, and the appellate court reversed, ordering the case remanded with direction to grant the town's motion to vacate. The court first concluded that prior case law had concluded that "there is a clear public policy in Connecticut ... that it is against public policy for a police officer to lie." Turning to the facts as found by the arbitration panel, the court then concluded that the award was contrary to that policy, noting:

 Here, the union concedes that [Grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [him] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.

The court's decision (Town of Stratford v. American Federation of State, County, and Municipal, Employees, Council 15, Local 407)  can be found here.