tag:blogger.com,1999:blog-90422495384406553962024-03-08T01:46:11.860-05:00Arbitration MattersCovering current developments in labor arbitrationJohn H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.comBlogger420125tag:blogger.com,1999:blog-9042249538440655396.post-52536249725599700812020-12-08T09:55:00.002-05:002021-08-20T15:48:10.348-04:00Another case on zero tolerance, just cause, and a failed drug test<p> <span style="font-size: large;">A recent post discussed a challenge to an arbitrator's award where the Company claimed that the arbitrator ignored the violation of its zero tolerance policy for drug use and improperly reinstated an employee, albeit without back pay. <a href="https://arbitrationmatters.blogspot.com/2020/11/zero-tolerance-drug-test-and-just-cause.html"><span style="color: #2b00fe;">Zero tolerance,</span> <span style="color: #2b00fe;">a drug test and just cause</span></a>. A similar issue is raised by a <span><span><a href="https://www.courtlistener.com/docket/18704628/colonial-wholesale-beverage-v-local-59-international-brotherhood-of/"><span style="color: #2b00fe;">complaint</span></a></span> </span>filed by Colonial Wholesale Beverage Company seeking to vacate an<span style="color: #2b00fe;"> </span><span><a href="https://drive.google.com/file/d/1_CQAo8WkLnjPXxIOj58p0FSAjBrtY22Y/view?usp=sharing"><span style="color: #2b00fe;">award</span></a></span> of Arbitrator Lawrence Holden. The dispute arose from the termination of an employee who tested positive for cocaine during a random drug test. </span></p><p><span style="font-size: large;">Grievant acknowledged having used cocaine on a Saturday evening, August 10, but maintained that this was a one time event caused by his celebration of obtaining his "dream house." His first report to work following the Saturday night use was Tuesday, August 13, and he worked through August 20 when he was notified that a random drug test administered on August 16 had tested positive. </span></p><p><span style="font-size: large;">Following receipt of the test results, the Company terminated the employee pursuant to what it described as its zero tolerance policy for drug use and for reporting for work under the influence of drugs or alcohol. It relied on a provision of the cba affirming that "the Union and the Employer agree that employees shall not engage in the unlawful use, purchase or sale of illicit drugs," language in its Employee Handbook that prohibits employees from reporting to work or working while under the influence of drugs or alcohol and that "an employee who engages in the above prohibited conduct is subject to disciplinary action up to and including immediate termination." </span></p><p><span style="font-size: large;">The Union challenged the existence of a zero tolerance policy, arguing that the Company maintained a second chance policy for employees who successfully completed a post termination drug treatment program, and that the Employee Handbook indicated the Company retained disciplinary discretion when an employee failed a drug or alcohol test. Such discretion, it argued, was inconsistent with a zero tolerance policy. </span></p><p><span style="font-size: large;">The issue submitted to Arbitrator Holden was </span></p><p><i><span style="font-size: large;">Did the Employer have just cause to terminate the employment of the grievant ... on or about August 26, 2019? If not, what shall be the remedy?</span></i></p><p><span style="font-size: large;">In his award, Arbitrator Holden noted that it was undisputed that grievant had tested positive for the presence of cocaine in his system. He then observed </span></p><p><i><span style="font-size: large;">The dispute in this case is over what should be the appropriate outcome for the grievance in light of his positive test result.</span></i></p><p><span style="font-size: large;">He concluded that the evidence established that the Company "has retained discretion, bound by the contractual principle of just cause decision-making, as to the manner in which it will deal with violations of the substance abuse policy." He based this conclusion in part on the absence of any reference to a "zero tolerance policy enforced by summary discharge" and the absence of illicit drug use from the list of "cardinal sins" in the cba for which no written notice must be given prior to discharge. He also observed that </span></p><p><span style="font-size: large;"><i>If there were a zero tolerance policy in place, more than likely the Employee Handbook would have said so by stating that any employee who participated in substance abuse shall be terminated immediately</i>.</span></p><p><span style="font-size: large;">Resolving another contested issue, he found that a Notice issued by a previous Human Resources Director describing a "one chance to rehab" policy had been posted in the workplace despite testimony from Company witnesses that they were unfamiliar with this Notice and had never observed it. </span></p><p><span style="font-size: large;">Arbitrator Holden found that grievant had violated the contractual prohibition on use of illicit drugs, but he found no evidence that he was under the influence at work. He ordered that grievant be reinstated without back pay. </span></p><p><span style="font-size: large;">The Company's effort to have the award vacated asserts that the Arbitrator improperly ignored the stipulated issue by focusing on the question of remedy rather than "the limited question posed to him by the parties, which was whether the Plaintiff had just cause to terminate [grievant]." It asserts also that he ignored the contract's grant of authority to the Company to relieve employees for legitimate business reasons and the discretion to terminate an employee without warning "for violating the broad catch-all of 'any serious matter'." It alleges that the Arbitrator exceeded his authority under the cba, improperly and contrary to the cba "added to or modified" then agreement and requests that the Court vacate the Award. </span></p><p><span style="font-size: medium;"><i>Update: The District Court rejected Colonial's request to vacate the award and granted the Union's request to confirm. <a href="https://www.leagle.com/decision/infdco20210817498"><span style="color: #2b00fe;">Colonial Wholesale Beverage v. Local 59, International Brotherhood of Teamsters</span></a></i></span></p>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com2tag:blogger.com,1999:blog-9042249538440655396.post-37205685419148149452020-11-30T20:55:00.003-05:002020-12-07T14:32:37.704-05:00Zero tolerance, a drug test and just cause<p><span style="font-size: large;"> The Eleventh Circuit reversed the decision of a District Court and upheld an arbitration award (<a href="https://drive.google.com/file/d/1tOL9bhA7MUleHnRR_ULq5rFBIExxoAIg/view?usp=sharing"><span style="color: #2b00fe;">he</span><span style="color: #2b00fe;">r</span><span style="color: #2b00fe;">e</span></a>) reinstating an employee terminated pursuant to the Company's Zero Tolerance policy following a positive drug test. <a href="https://www.leagle.com/decision/infco20201120091"><span style="color: #2b00fe;">Georgia-Pacific Consumer Operations LLC, v. United Steel <span style="background-color: white; caret-color: rgb(30, 30, 30); font-family: Merriweather, serif; text-align: justify;"> </span>Paper and Forestry, Rubber,</span> <span style="color: #2b00fe;">Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952</span></a>.</span></p><p><span style="font-size: large;">The cba in issue provided:</span></p><p><i><span style="font-size: large;"> The Company will establish a "zero tolerance" random drug testing program for all Company employees at the Naheola facility.</span></i></p><p><span style="font-size: large;">The Company's Corporate Policy relating to random drug screening stated:</span></p><p><i><span style="font-size: large;">All persons who test positive for any substances listed in Section 1 (Introduction) will be terminated, unless otherwise prohibited by a collective bargaining agreement or applicable law. All terminations must be coordinated by the location/division human resources manager.</span></i></p><p><span style="font-size: large;">Grievant was selected for a random drug test. The test showed a positive result for codeine When informed of the result, grievant explained that he may have mistakenly taken some of his wife's prescription cough syrup instead of his own, non prescription, one. Because grievant could not produce a prescription in his own name for cough medicine containing codeine his employment was terminated under the Company's Zero Tolerance Policy.</span></p><p><span style="font-size: large;">The termination was grieved and submitted to Arbitrator James Odom for resolution. In his award, Arbitrator Odom described the dispute:</span></p><p><i><span style="font-size: large;"> Does the Contract require the Company to demonstrate just cause in order to terminate an employee who has tested positive for opiates during a random drug screen?</span></i></p><p><span style="font-size: large;">The Company argued that under its Zero Tolerance Policy the positive test result itself established the required evidence of just cause. The Union maintained that any discipline administered under the contract was required to meet the just cause standard, which required an evaluation of all the circumstances. </span></p><p><span style="font-size: large;">Arbitrator Odom concluded:</span></p><i><span style="font-size: large;">Obviously, maintaining a safe, drug-free work place is a necessary and positive goal of the Company. And I understand the theory that a well-advertised, strictly interpreted zero tolerance policy requiring every employee who tests positive on a random drug screen be immediately discharged could have a greater tendency to reduce the presence of drugs in a workplace than a practice that is less forceful. But is an inflexible “test positive and you are terminated" rule enforceable? More to the point, under the parties Contract, is such a policy enforceable with regard to the grievant and given his circumstances? </span></i><div><i><span style="font-size: large;"><br />Section 2 of Article 8, Rights of Management of the Contract limits Management's right to discipline and discharge employees to just cause. As a labor arbitrator, I am unable to interpret as reasonable or just any decision to terminate that purposefully ignores the circumstances and causes surrounding the violation</span></i><div><span style="font-size: large;"><br /></span><div><span style="font-size: large;">Applying that standard, Arbitrator Odom determined that there was not just cause for the termination. He found grievant's use of his wife's cough medicine was not intentional, and there was no evidence that he was under the influence of drugs while at work. </span></div></div></div><div><i><span style="font-size: large;"><br /></span></i></div><div><span style="font-size: large;">While finding termination too severe, Arbitrator Odom did find that grievant had made "the error of mistake" and was responsible for the negative results. He reduced the termination to a ninety day suspension and ordered grievant's reinstatement.</span></div><div><span style="font-size: large;"><br /></span></div><div><span style="font-size: large;"> The Company sought to vacate the award as in excess of the Arbitrator's authority in ignoring what it believed to be the contractual requirement that a positive drug result in termination. The Company's complaint can be found <span style="color: #2b00fe;"><a href="https://drive.google.com/file/d/1bfLgpQojqDg9zVfais7WX0xE7EBiRCJj/view?usp=sharing"><span style="color: #2b00fe;">here</span></a>.</span> The Magistrate, in a <a href="https://drive.google.com/file/d/1Y0upBcPYKoN3dk1L_uR5ol5uR24zwgBS/view?usp=sharing"><span style="color: #2b00fe;">dec</span>i<span style="color: #2b00fe;">sion</span></a> adopted by the District Court (<span style="color: #2b00fe;"><a href="https://drive.google.com/file/d/13lLWCbnMJ3wc-5mJaLCzbYsfQOmr_KP3/view?usp=sharing"><span style="color: #2b00fe;">here</span></a></span>), agreed with the Company and vacated the Award. The Magistrate concluded that the Arbitrator's finding that grievant had engaged in conduct that was defined in the cba as an offense subjecting him to discharge constituted an "implicit finding" of just cause which the Arbitrator was not free to ignore. </span></div><div><span style="font-size: large;"><br /></span></div><div><span style="font-size: large;">On the Union's appeal, the Eleventh Circuit overturned that decision. The Court found that the Arbitrator was within his authority in resolving the interplay between the just cause requirement of the cba and the language relating to the Company's random drug test program:</span></div><span style="font-size: large;"><br /><i>Turning to Georgia-Pacific's position, [the arbitrator] distilled it as "[Irvin's] positive test is the required evidence of just cause." Then, the arbitrator characterized the part of the contract concerning Georgia-Pacific's the random drug-testing program as a "commitment" and asked whether Georgia-Pacific's interpretation of the policy made to fulfil that commitment was "under the Parties' contract, . . . enforceable with regard to [Irvin] and . . . his circumstances?"<br />The arbitrator's answer was no. Whether that's right or wrong doesn't matter for our purposes—all that matters is that the arbitrator's answer flowed from his interpretation of the contract. The arbitrator emphasized that another provision of the contract limited Georgia-Pacific's power "to discipline and discharge employees to just cause." He then explained why he couldn't conclude that "just cause" existed under these circumstances. If his efforts had simply been free-wheeling policymaking, then vacatur would have been justified. But they weren't, and so it wasn't.</i></span><div><i><span style="font-size: large;"><br /></span></i></div><div><span style="font-size: large;">The Court rejected the Company's, and the District court's reliance on earlier cases finding an Arbitrator exceeded his authority by ignoring "express (and apparently complete) terms of a drug testing policy spelling out each provision in some detail." It found the language in this case "much less specific, as one might expect for an 'element' of a plan that the parties agree will be implemented later." Noting other detailed provisions of the cba relating to drug use and drug testing, it observed that the parties knew how to bargain clear, specific language that synthesized drug testing plans with the just cause provision, the Court found their failure to do so here left it within the Arbitrator's authority to resolve that relationship. </span></div>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com1tag:blogger.com,1999:blog-9042249538440655396.post-28333922743570844652020-11-15T11:13:00.000-05:002020-11-15T11:13:28.883-05:00Back pay - Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages<p><span style="font-size: large;"> The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. <i><a href="https://www.unionleader.com/news/safety/city-ordered-to-rehire-proven-racist-cop-status-uncertain/article_9176341e-a6f3-51da-8f57-ceb8e60bf3fa.html"><span style="color: #2b00fe;">City ordered to rehire 'proven racist' cop;</span> <span style="color: #2b00fe;">status uncertain</span></a></i></span></p><p><span style="font-size: large;">The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator's award on the merits as well as a subsequent award on back pay issues. </span></p><p><span style="font-size: large;">Arbitrator Gary Altman overturned the termination, finding the penalty too severe. He converted the discipline to a thirty day suspension and ordered grievant's reinstatement. He further ordered that:</span></p><p><i><span style="font-size: large;">... grievant shall not be awarded back pay for the period of this thirty day suspension. Under this award the grievant is to be made whole for lost compensation until he returns to work pursuant to this Award, minus thirty days’ pay for the period of the suspension. In addition, his back pay shall be offset by any compensation that the grievant received during this time period. </span></i></p><p><span style="font-size: large;">The Department refused to reinstate the grievant, and also claimed that grievant had failed to mitigate his damages by failing to make reasonable efforts to find seek employment after his termination. It was undisputed that grievant had failed to seek alternative employment during the period he was no longer working for the City of Manchester. Grievant noted that following this termination he assumed primary caregiver responsibility for his two sons, providing the opportunity for his wife to increase her hours and, presumably her income. According to grievant:</span></p><i><span style="font-size: large;">“My wife adjusted her work hours and schedule following termination, no longer being able to serve as primary caregiver for them”, and that his wife now “works as a nurse practitioner and adjunct professor of nursing. Those employment responsibilities combined, having been adjusted post termination, have her now working 7 days a week.” </span></i><p><span style="font-size: large;">The dispute between the Department and the Union concerning the appropriate calculation of back pay due grievant was submitted to the arbitrator for resolution. <a href="https://drive.google.com/file/d/1m3_hWqr-tuhHKNh_kByb9EHyTnE6-t3m/view?usp=sharing"><i><span style="color: #2b00fe;">Manchester Police Patrolman's Association and City of Manchester.</span></i></a></span></p><p><span style="font-size: large;">Arbitrator Altman separated the back pay period into three district time periods. Initially he noted that at the time of grievant's termination the Department also sought to have the County Attorney pursue criminal charges against grievant. The County Attorney ultimately did not pursue those charges. For this initial period, Arbitrator Altman concluded that the pendency of potential criminal charges seriously limited grievant's ability to find employment in a substantially equivalent position. He observed: </span></p><i><span style="font-size: large;">Considering the totality of circumstances, including the position held by the grievant, and the fact that he was under criminal investigation, Mr. Brown was not required to have sought employment during the time period he was under criminal investigation. In other words, it was reasonable for Mr. Brown to have waited until the criminal investigation was concluded for him to make any attempt to look for substantially similar employment.2 </span></i><div><i><span style="font-size: large;">___<br />2 The obligation to seek employment is not for any and all positions. Rather, an employee’s obligation is to seek employment in a position suitable to his background and experience, and one that provides comparable pay and benefits.</span></i><div><i><span style="font-size: large;"><br /></span></i></div><div><span style="font-size: large;">The second time period encompassed the period between the time the County Attorney's office advised that it would not pursue criminal charges and the date of the Arbitrator's award. For this period, Arbitrator Altman concluded that grievant had failed to mitigate, and denied back pay:</span></div><div><span style="font-size: large;"><br /></span></div><i><span style="font-size: large;">Circumstances changed after it was clear that the County Attorney decided not to pursue criminal charges. Undoubtedly, it would have been difficult for Mr. Brown to find work in the field of law enforcement after his discharge, but the difficulty of finding such position does not excuse him from making at least some effort, to look for work. It is the general rule in back pay cases that an employee must make at least reasonable efforts to find new employment, which is substantially equivalent to the position lost and is suitable to a person of his or her background and experience. <br />It is not as if Mr. Brown had to actually find employment but he must, at least, have made an effort to search for employment. It would be inappropriate to allow an employee to collect back pay during a period when the employee made no effort to mitigate damages by seeking employment and essentially dropped out of the labor market.</span></i><div><i><span style="font-size: large;"><br /></span></i></div><div><span style="font-size: large;">Arbitrator Altman rejected the claim that grievant's assumption of increased child care responsibilities provided a basis for his failure to seek other employment. He noted:</span></div><div><span style="font-size: large;"><br /></span></div><span style="font-size: large;"><i>The fact that Mr. Brown stayed home with his minor children while his wife worked additional hours does not satisfy the duty to mitigate. By this decision, Mr. Brown totally </i><i>removed himself from the workforce. I know of no cases in which a discharged employee is excused from attempting to search for work because he decides to stay home with his children.</i></span><div><i><span style="font-size: large;"><br /></span></i></div><div><span style="font-size: large;">Finally, the Arbitrator found grievant <u>was</u> eligible for back pay for the period following the merits award ordering his reinstatement until the City actually returned him to employment:</span></div><div><i><span style="font-size: large;"><br /></span></i></div><div><span style="font-size: large;"><i>The City has the right to challenge the Arbitrator’s Decision directing the reinstatement of Mr. Brown, as it deems appropriate. If the City complied with the Award, however, Mr. Brown would have been reinstated and would have begun to be paid the wages and benefits due to him under the parties’ Collective Bargaining Agreement. I know of no cases in which an employee’s obligation to mitigate continues after an award of reinstatement.</i><span style="font-family: Courier New;"><span style="white-space: pre-wrap;"> </span></span></span></div><div><br /></div><div><span id="docs-internal-guid-ece5d7f9-7fff-8e91-232c-6861b3d042d9" style="font-size: large;"><p dir="ltr" style="line-height: 1.6964404106140136; margin-bottom: 0pt; margin-top: 1.4027099609375pt;"><br /></p></span><br /></div></div>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-40736876886330839112020-11-01T10:21:00.000-05:002020-11-01T10:21:20.409-05:00Quick hits - Union dues, self defense, and clearing a grievant's name<p><b><span style="font-size: large;">Arbitrator rejects City's claim the <i>Janus</i> supersedes dues deduction withdrawal window of cba</span></b></p><p><span style="font-size: large;">Arbitrator William Heekin rejected the position of a School District that the Supreme Court's decision in <span style="color: #2b00fe;"><a href="https://www.leagle.com/decision/insco20180627f06" target="_blank"><span style="color: #2b00fe;">Janus</span></a></span><span style="color: red;"> </span>effectively <span style="caret-color: rgb(255, 0, 0);">superseded a ten day "window" for withdrawal of union dues deduction authorization. <span style="color: #2b00fe;"><a href="https://drive.google.com/file/d/18dvULUWt49s0U0DoRWsVcLZocS8SfOZv/view?usp=sharing"><span style="color: #2b00fe;">Fairfield City School District Board of Education and</span> <span style="color: #2b00fe;">OAPSE/AFSCME Local 4 AFL-CIO Local 205</span></a></span>. Grievant had signed a membership application as well as a dues deduction authorization on August 12, 2018. That application, and the parties cba, provided for revocation of a dues deduction agreement only during a specified ten day period annually. Grievant resigned his membership, and sought to revoke his dues deduction authorization outside the contractual window. The School Board honored that request. The Union grieved the Board's action action, disagreeing with the Board's assertion that allowing that revocation was compelled by the Supreme Court's decision.</span></span></p><p><span style="caret-color: rgb(255, 0, 0); font-size: large;">In upholding the Union's grievance, Arbitrator Heekin concluded:</span></p><i><span style="font-size: large;">Janus does not supersede or interfere with the Article 38, contractual mandate of when and how authorization for a union membership dues payroll deduction is to be revoked. </span></i><p><span style="font-size: large;">Arbitrator Heekin noted that grievant had previously signed both a membership application and a dues deduction authorization. This, he found, distinguished the case from the circumstances involved in Janus:</span></p><p><span style="font-size: large;"><i>Simply put, Janus deals with the Constitutionality of a public sector employee who, unlike Clifford Heckler, chose to not become a union member and had not authorized the payroll deduction of an agency fee, which in accordance with his collective bargaining agreement and/or state law would be remitted to the union that represented him in collective bargaining. In other words, Janus is determined to have not addressed the subject of a public sector employee such as Clifford Heckler who, unlike Mark Janus, voluntarily chose to become a union member and voluntarily authorized his public sector employer to deduct union membership dues from his employee paycheck. This follows where the Supreme Court in setting out its nearly fifty-page majority opinion in Janus did not once refer to the subject of a union membership dues, payroll deduction or the relationship between an employee who voluntarily becomes a union member and his/her union. Accordingly, in finding that Janus does not apply, it is held that what controls is the Article 38, contractually mandated “ten (10) day” window period and other requirements as to when and how union membership dues payroll deduction authorization can be revoked.</i> </span></p><div><span style="font-size: large;">Accordingly, he ordered the School Board, as requested by the Union, to "[m]ake OAPSE whole $ for [grievant's] Authorization of Dues, and begin deductions again."<br class="Apple-interchange-newline" /></span><p></p></div><p><b><span style="font-size: large;">Bus driver's physical altercation with passenger driven in part by self defense, termination too severe </span></b></p><div><p><span style="font-size: large;">Arbitrator Colman Lalka was presented with a dispute arising from an incident between a bus driver and passenger. The dispute began as a verbal exchange and escalated into a physical altercation. Arbitrator Lalka largely sustained the grievance, overturning grievant's termination but agreeing there was just cause for discipline "according to [the Company's] Progressive Discipline Program." <a href="https://drive.google.com/file/d/1BpgCzR4fzJzuEbn_nGIO0CKD2YBqjs3T/view?usp=sharing"><span style="color: #2b00fe;">Greater Cleveland</span> <span style="color: #2b00fe;">Regional Transit Authority and Amalgamated Transit Union, Local 268.</span></a></span></p><p><span style="font-size: large;">In making his determination, Arbitrator Lalka looked to the standards used to resolve claims of excessive force by police officers. Applying those standards, the Arbitrator concluded</span></p><i><span style="font-size: large;">The bus operator's primary function is to drive the bus, while providing courteous service to the Authority's patrons. In situations of irate and difficult passengers, the Authority's de-escalation protocol can be expected to be used. However, an Operator must have some leeway to exercise judgment and reasonably respond to clearly out-of-control passengers who provide the driver with a reasonable belief of bodily harm.</span></i><p><span style="font-size: large;">While rejecting the RTA's assertion that grievant's conduct warranted termination, Arbitrator Lalka concluded:<span id="docs-internal-guid-d32dc92b-7fff-de00-0542-00910c117097"></span></span></p><p><span id="docs-internal-guid-e6ab1378-7fff-b541-ffe5-a439eb053dbb"><span style="font-size: large; font-variant-east-asian: normal; font-variant-ligatures: normal; font-variant-position: normal; vertical-align: baseline; white-space: pre-wrap;"><i><span style="font-family: inherit;">While the Grievant's actions did not rise to the level of a terminable offense, the Grievant's act of yelling to the female passenger to "shut up," nevertheless constituted a violation of the Employee Performance Code. That act was also in contravention of the Grievant's de-escalation training in dealing with difficult passengers. Just Cause exists for discipline lesser than termination and may be administered pursuant to the Authority's Positive Discipline Program.</span><span style="font-family: Times New Roman;"> </span></i></span></span></p><p></p></div><p><span style="font-size: large;"> <b>Arbitrator sustains grievance of Sheriff's deputy, "encourages" joint public announcement clearing grievant's name</b></span></p><p><span style="font-size: large;">Arbitrator Doyle O'Connor sustained the grievance of a Kalamazoo Sheriff's Deputy whose employment had been terminated for alleged neglect related to the death in custody of a jail inmate. <a href="https://drive.google.com/file/d/1afXTa1sZgmuPZoXJisbEpsCOKEwxuFsl/view?usp=sharing" target="_blank"><span style="color: #2b00fe;">Kalamazoo Sheriff & County and</span> <span style="color: #2b00fe;">Kalamazoo County Sheriff's Deputies Association</span></a></span></p><p><span style="font-size: large;">The incident in issue arose in June, 2015. An inmate who had smuggled drugs into the jail died from an overdose while in custody. Following that death, an investigation was conducted which cleared grievant, and other employees, of any wrongdoing or negligence. In 2019, in the course of discovery in connection with a lawsuit filed by the family of the deceased inmate, an audio recording, previously believed not to have not been retained, was uncovered. After review of the audio, the Department decided to reopen the investigation into grievant's actions. </span></p><p><span style="font-size: large;">Arbitrator O'Connor rejected the Union's challenge to the reopening. He found that the recently discovered audio constituted new and substantive information and supported the reopening of the investigation despite the long delay. However, he found nothing in the new audio to alter the original conclusion that grievant had engaged in no misconduct or negligence. Responding to the Union's claim that the decision to terminate was driven by political consideration arising from the lawsuit, the Arbitrator noted that the evidence did not "compel" that conclusion but that "to the extent that such pressure had any impact on the Employer's decision making in this case, it would be inappropriate." While he found that there was no evidence that grievant had neglected his duties, the Arbitrator noted that there was evidence that another Deputy had neglected his duties regarding the inmate, had attempted to conceal that fact, but was not disciplined. </span></p><p><span style="font-size: large;">Finding that the Department had failed to establish just cause for the termination he directed grievant be offered reinstatement "immediately" and be made whole in all respects. He further noted:</span></p><p><i><span style="font-size: large;">Given the high public profile this case has already had, and the damage unfortunately caused to [grievant's] otherwise good reputation where in these especially fraught times he has been charged with culpability in the death of an inmate in police custody, the Parties are encouraged to endeavor to agree upon a joint public pronouncement regarding the outcome; failing at that, the Parties regardless remain free to address the matter publicly as they see fit.</span></i></p><p><br /></p>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-81381640733742379312020-10-18T07:56:00.001-04:002020-10-28T17:19:08.038-04:00Arbitrator upholds termination of Sheriff's Deputy for off duty use of force<p><span style="font-family: inherit; font-size: large;">This case comes at a time one report notes " "[t]<span style="background-color: white; caret-color: rgb(46, 46, 46); color: #2e2e2e;">he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."</span><span style="background-color: white; caret-color: rgb(46, 46, 46); color: #2e2e2e;"> </span><span><span style="background-color: white; caret-color: rgb(46, 46, 46); color: #2e2e2e;"> </span></span></span><span style="background-color: white; caret-color: rgb(46, 46, 46);"><span style="font-family: inherit; font-size: large;"><a href="https://www.kens5.com/article/news/local/law-enforcement/deputy-fired-after-allegedly-punching-man-in-h-e-b-parking-lot-loses-fight-to-be-returned-to-force/273-f9a64e8d-2741-4b36-b45b-9f759be1b74e"><span style="color: #2b00fe;">Deputy fired after allegedly punching man in H-E-B parking lot loses</span><span style="color: #2e2e2e;"> </span><span style="color: #2b00fe;">fight to be returned to force</span></a></span></span> </p><p><span style="font-family: inherit; font-size: large;">In an <a href="https://drive.google.com/file/d/177oJ3XNkpuhpA3fdRkUvHHZWh8B7vud8/view?usp=sharing"><span style="color: #2b00fe;">Award</span></a></span><span style="color: #2b00fe;"> </span><span style="font-family: inherit; font-size: large;">involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. </span></p><p><span style="font-family: inherit; font-size: large;">The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.</span></p><p><span style="font-family: inherit; font-size: large;">Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force."</span><span style="font-family: inherit; font-size: x-large;"> </span></p><p><span style="font-family: inherit; font-size: large;">On the propriety of termination, the Arbitrator noted:</span></p><p><i style="text-indent: 13.572006225585938pt;"><span style="font-family: inherit; font-size: large;"><span style="font-variant-east-asian: normal; font-variant-ligatures: normal; font-variant-position: normal; vertical-align: baseline; white-space: pre-wrap;">The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. </span><span style="text-indent: 12.984016418457031pt; white-space: pre-wrap;">The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment. </span></span></i></p><p><span style="font-family: inherit;"><br /><span style="background-color: white; caret-color: rgb(46, 46, 46);"><span style="font-family: inherit; font-size: large;"></span></span></span></p>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-25533268062478656502020-10-11T13:44:00.002-04:002020-11-08T14:08:02.533-05:00Two arbitrators address the issue of the COVID pandemic as a force majuere event<div><span style="font-size: large;">Two recent awards involve questions concerning the existence or impact of the Corona virus as a force majeure event, potentially excusing claimed violation of the parties' agreements.</span></div><div><span style="font-size: large;"><br /></span></div><div><span style="font-size: large;">In<span style="color: #2b00fe;"> </span></span><a href="https://drive.google.com/file/d/1oslKV_c7LnYGSfCaxO3kBL9d_mO4d4du/view?usp=sharing" target="_blank"><span style="caret-color: rgb(43, 0, 254); color: #2b00fe; font-size: large;">American</span><span style="font-size: large;"><span style="caret-color: rgb(43, 0, 254); color: #2b00fe;"> </span><span><span style="color: #2b00fe;">Association of University Professors - University of Akron Chapter</span></span></span></a><span style="color: #2b00fe;"><a href="https://drive.google.com/file/d/1oslKV_c7LnYGSfCaxO3kBL9d_mO4d4du/view?usp=sharing" target="_blank"><span style="font-size: large;">,</span></a> </span><span style="font-size: large;">Arbitrator Jack Buettner concluded that the force majuere clause privileged the University's actions when it implemented a "retrenchment." </span></div><span style="font-size: large;"><br /><i>The effects of the COVID pandemic are certainly unforeseen and surely out of anyone’s control. The number of cases fluctuates from day to day, week to week, and location to location sending counties in Ohio from a Level 2, Orange, to a Level 3, Red, while hopefully avoiding the Level 4 designation which signifies severe exposure and spread and could result in another state of emergency. Cases of COVID on college campuses have been cited as one of the factors that have pushed counties into the Red zone. [Bamforth, E. (2020, September 4) Plain Dealer, p. A5.] The pandemic is affecting colleges in general as cited in Kiplinger’s Personal Finance. (5 Ways College is Changing. 9/2020, p. 44) There is lower enrollment as families struggle through the recession, tighter budgets as student revenue decreases, federal and state funding cuts, and declining government budgets. In an effort to balance college budgets, smaller staffs are being seen as faculty is laid off or furloughed. Circumstances remain in flux as the state grapples with the disease and its spread. COVID is, indeed, a catastrophic event, and it’s resulting impacts are unforeseeable and beyond the University’s control. <br /><br />Having established that a force majeure did, indeed, exist, the University needed to satisfy the requirements in Section 1(A) ...</i></span><div><span style="font-size: large;"><br /></span></div><div><span style="font-size: large;">Arbitrator Buettner concluded further that the pandemic did not relieve the University from complying with certain other obligations of the contract "which are feasible and possible to implement since there is no immediate financial impact or time frame."</span></div><div><span style="font-size: large;"><br /></span></div><div><span style="font-size: large;">In <a href="https://drive.google.com/file/d/1sQUsMQf_MEC33L9ZbKnZk6kqzz3gbSET/view?usp=sharing">Alaska Airlines, Inc. and Aircraft Maintenance Fraternal Association, Local 32</a> a panel chaired by Arbitrator Frederic Horowitz addressed a dispute that "arose as the product of economic disruption caused by the global COVID pandemic plaguing the travel industry." The parties disagreed about the scope of certain job security language in their agreement. </span></div><div><span style="font-size: large;"><br /></span></div><div><span style="font-size: large;">Rejecting the position of the Company, the panel concluded that the applicable provisions "confirms the plain language of the parties' Agreement [and] supports the position of the Union."</span></div><div><span style="font-size: large;"><br /></span></div><i><span style="font-size: large;"><span> </span>The parties are seeking expedited resolution from the System Board of good faith yet irreconcilable differences about the application of force majeure provisions in Paragraph 2. of LOA #9 to the job security provisions in Paragraph 4. of that LOA as well as to the impact if any of those protections on the seniority provisions in Article 9 K.2. of the Agreement. When negotiating the Transition Agreement in 2019, neither party anticipated the massive economic disruptions caused by the global pandemic in 2020. The System Board in these circumstances cannot attempt to presume or conjure what the bargaining parties would have done had the subject been raised in negotiations. Rather, the Board can only interpret and apply the existing contract provisions in a manner consistent with accepted standards of contract construction in light of the unique facts presented.</span></i><div><span><span style="color: #0d0d00; font-family: Arial; font-variant-east-asian: normal; font-variant-ligatures: normal; font-variant-position: normal; vertical-align: baseline; white-space: pre-wrap;"><span style="font-size: large;"><br /></span></span></span></div><span style="font-size: large;"> <i> </i><i>In Issue No. 1., the evidence supports a finding the job security provisions in Paragraph 4. of LOA #9 are not subject to the force majeure provisions in Paragraph 2. based on the plain language of those provisions and the absence of a mutual intent manifested otherwise during bargaining.</i></span>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com2tag:blogger.com,1999:blog-9042249538440655396.post-74099240097798515472020-10-04T10:47:00.000-04:002020-10-04T10:47:05.806-04:00Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement<p><span style="font-size: large;"> <span style="font-family: inherit;">An earlier post, <a href="https://arbitrationmatters.blogspot.com/2019/11/arbitrator-concludes-that-principle-of.html"><span style="color: #2b00fe;">Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement</span></a><span style="color: #2b00fe;">,</span> noted a complaint filed by Dana Corp seeking to set aside an award of Arbitrator Daniel Kininmonth. That award involved the termination of an individual who was subject to a last chance agreement (LCA). </span></span></p><p><span style="font-family: inherit; font-size: large;">The LCA provided:</span></p><p><i style="caret-color: rgb(34, 34, 34); color: #222222;"><span style="font-family: inherit; font-size: large;">In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination. <br /><br />Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.</span></i></p><p><span style="font-family: inherit; font-size: large;"><span><span>The Arbitrator found that </span>grievant<span> had engaged in the conduct he was accused of, and that this conduct was in violation of the LCA. However, observing that "An employee who signs a last chance agreement only gives up the</span></span><span> </span><span>rights him or her expressly agrees to give up" the Arbitrator found that the LCA in this case did not expressly exclude the principle of "just cause."</span></span></p><p><span style="font-family: inherit; font-size: large;"><span> Arbitrator Kininmonth found that grievant had been subjected to double jeopardy </span>—<span> he had been issued a "written warning" for an offense he was subsequently terminated for.</span></span></p><p><span style="font-family: inherit; font-size: large;">The Arbitrator rejected the Company's claim that he was without authority to consider the question of Double Jeopardy in the presence of a Last Chance Agreement:</span></p><p><i style="caret-color: rgb(34, 34, 34); color: #222222;"><span style="font-family: inherit; font-size: large;">The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.</span></i></p><p><span style="font-family: inherit; font-size: large;"><span>The District Court for the Eastern District of Kentucky has now confirmed the award, rejecting the Company's claim that the Arbitrator acted outside the scope of his authority and did not carry out his role of interpreting the LCA but instead utilized his own notions of "just cause."<span style="color: #2b00fe;"> </span></span><span style="color: #2b00fe;"><a href="https://www.leagle.com/decision/infdco20200924985" target=""><span style="color: #2b00fe;">Dana Incorporated v. International Union, United Automobile, Aerospace and Agricultural Implement Workers</span></a> </span></span></p><p><span style="font-family: inherit; font-size: large;">The Court concludes:</span></p><p style="padding-top: 0.15em; text-align: justify;"><span style="font-family: inherit; font-size: large;"><i style="color: #1e1e1e;">Dana argues that arbitrators may not examine just cause under last-chance agreements, pursuant to the Sixth Circuit rulings in Ohio Edison Co. v. Ohio Edison Joint Council, </i><cites style="color: #1e1e1e; font-style: italic;"><a href="https://www.leagle.com/cite/947%20F.2d%20786" style="color: #00528b;">947 F.2d 786</a></cites><i style="color: #1e1e1e;">, 787 (6th Cir. 1991) and Bakers Union Factory No. 326 v. ITT Cont'l Baking Co., </i><cites style="color: #1e1e1e; font-style: italic;"><a href="https://www.leagle.com/cite/749%20F.2d%20350" style="color: #00528b;">749 F.2d 350</a></cites><i style="color: #1e1e1e;">, 351 (6th Cir. 1984). ... But the Arbitrator distinguished those cases as involving instances where the arbitrator failed to follow the terms of the last chance agreement at issue by mitigating the employee's termination (when the agreement clearly called for termination). Instead, the Arbitrator advised that, he "had not ignored the LCA,</i><span style="color: #1e1e1e;"><span style="caret-color: rgb(30, 30, 30);"><i>"</i></span></span><i style="color: #1e1e1e;"> ... and that the LCA "does not exclude the principle of `just cause.'"... Although the LCA here called for termination, the Arbitrator, after finding "just cause" and related procedural protections remained, found a procedural double jeopardy violation (which he deemed an affirmative defense, not a mitigating factor) when the Company punished Akerman twice for the same conduct. ... This Court need not decide whether that distinction is too fleeting to matter. Perhaps the jump from "defense" to "affirmative defense" was a mistake. Indeed, this Court may have reached a different conclusion, but this Court's "task is not to choose the best interpretation." ...</i></span></p><p style="color: #1e1e1e; padding-top: 0.15em; text-align: justify;"><i><span style="font-family: inherit; font-size: large;">Finally, Dana argues that the Arbitrator went outside of his authority in considering affirmative defenses because the LCA did not allow for an affirmative defense.... True, but the LCA did not expressly disallow affirmative defenses either. The Company drafted the LCA and could have easily defined the term "legitimacy" to avoid this dispute and foreclose any procedural due process arguments. See Zeon Chemicals, 949 F.3d at 985 ("Had the company clarified two features of this agreement, we do not see how the arbitrator could have plausibly contradicted them.") Given the inartful language, the Court will "leave the parties to what they bargained for." Zeon Chemicals, 949 F.3d at 982. Here, they tasked the Arbitrator with determining the legitimacy of Akerman's discharge. This is precisely what he did. He applied the terms of the LCA (including its "legitimacy" provision) to the facts of Ackerman's discharge. Whether he reached the right outcome is neither here nor there. The parties "bargained for an arbitrator's interpretation of the contract, not a federal judge's." Econ. Linen, 917 F.3d at 513. With all of Dana's arguments met, the Court finds that the Arbitrator did not act outside the scope of his authority and that he was, at a minimum, "arguably construing or applying the contract." Zeon Chemicals, 949 F.3d at 983 (quoting Misco, Inc.,484 U.S. at 38). Given the deferential standard, the Court will not disturb his decision.</span></i></p><p><span style="font-family: inherit; font-size: large;">Arbitrator Kininmonth's award contains a detailed review of cases discussing the impact of a LCA on an Arbitrator's authority. </span></p><p><span style="font-family: inherit; font-size: large;"><br /></span></p><p><span style="font-family: inherit; font-size: large;"><br /></span></p><p><br /></p>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-57669568754675051242020-09-27T10:12:00.004-04:002022-06-02T14:32:50.474-04:00Arbitrator finds Federal Bureau of Prisons failed to establish a BFOQ defense for refusing to assign female staff in an all male prison to ""Dry Cell" and suicide watch duty.<p><span style="font-size: large;"><span style="font-family: "Times New Roman";"> In his award in</span><span style="font-family: "Times New Roman";"> </span><span style="font-family: "Times New Roman"; text-decoration: underline;"> <a href="https://drive.google.com/file/d/1xlpOiMKcxS_MMZRpptt2EAWbblhRHJ--/view?usp=sharing" target=""><span style="color: #2b00fe;">U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Memphis Tennessee and American Federation of Government Employees, Local 3731</span></a></span><span style="font-family: "Times New Roman";"><span style="color: #2b00fe;">, </span>Arbitrator Daniel Kininmonth addresses the balance between the rights of male inmates to bodily privacy and the rights of female staff to be assigned to guard them.</span></span></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;">FCI Memphis is an all male, medium security facility. The grievance in issue involved the Bureau of Prisons' decision to exclude female correctional officers (or supplemental staff) from Dry Cell or Suicide Watch. Where an inmate has ingested contraband or concealed contraband in a body cavity, he may be placed in a cell with no toilet, faucet or shower (a dry cell). The inmate is then closely observed "until the inmate has voided the contraband or until sufficient time has elapsed to preclude the possibility that the inmate is concealing contraband ..." In Suicide Watch, the correctional officer continuously watches the inmate to prevent him from harming himself. The grievance arose when female correctional officers were denied the opportunity to handle these assignments. </span></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;"><br /></span></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;">The parties raised a variety of issues in support of their respective positions, but one of the issues was the BOP's assertion that its policy of excluding women from these assignments justified by "business necessity" and that the applicable agreement recognized its right to assign work. The union claimed that the exclusion was discriminatory on its face and could only be justified if gender was a Bona Fide Occupational Qualification (BFOQ) for the assignment. While recognizing that inmates had a legitimate privacy interest, the Union argued: </span></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;"><br /></span></p><p style="font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;"><i style="font-family: "Times New Roman";">Privacy protection directly affects the essence or central mission of prisons</i><span style="font-family: Times New Roman;"><i>. </i></span><i style="font-family: "Times New Roman";"> ... The Sixth Circuit has uniformly held that "privacy" relates to the essence of prison business. Million v. Warren Cty., Ohio, 2020 U.S. Dist. LEXIS 28000 (S.D. Ohio 2020). Yet, an inmate's right to privacy must be balanced against the legitimate objective of providing equal job opportunities without regard to sex pursuant to Title VII. Griffin v. Michigan Dep't of Corrections, 654 F. Supp. 690, 701 (E.D. Mich. 1982). The courts balance both privacy rights and Title VII. The degree of the balancing depends on the inmate's gender. Occasional and inadvertent observation of unclothed inmates by cross-gender guards is usually tolerated by the courts. This is particularly true of female guard's observing male inmates</i></span></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><i><span style="font-size: large;"><br /></span></i></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;">After an extensive review of the case law and legal commentary on this question, Arbitrator Kininmonth concludes that the BOP failed to establish that its position was consistent with a BFOQ defense:</span></p><p dir="ltr" style="line-height: 1.399440050125122; margin: 3.809844970703125pt 1.95892333984375pt 0pt 8.300994873046875pt; text-align: justify; text-indent: 20.149993896484375pt;"><span style="background-color: transparent; color: black; font-family: Times, serif; font-size: large; font-variant-caps: normal; font-variant-east-asian: normal; font-variant-ligatures: normal; font-variant-position: normal; font-weight: 400; text-decoration: none; vertical-align: baseline; white-space: pre-wrap;"><i>In this case, (1) FCI Memphis has not asserted a factual basis that assigning female staff to "Dry Cell" or "Suicide Watch" would undermine the prison's operation. (2) Admittedly, an inmate's privacy at FCI Memphis is entitled to some protection under the law. However, the inmates in "Dry Cell" and "Suicide Watch" are clothed. Therefore, there is no privacy violation. (3) There are reasonable alternatives to protect the inmate's privacy. If the inmate has the urge to urinate or have a bowel movement in the "Dry Cell," the female staff member can summon a male colleague and temporarily withdraw. The inmate in "Suicide Watch" who needs to urinate or defecate can be provided a towel, blanket or privacy screen in his cell to protect his privacy. FCI Memphis cannot prove the three (3) factors necessary to sustain a "Privacy BFOQ Defense." </i></span></p><p dir="ltr" style="line-height: 1.399440050125122; margin: 3.809844970703125pt 1.95892333984375pt 0pt 8.300994873046875pt; text-align: justify; text-indent: 20.149993896484375pt;"><span style="font-family: Times, serif; text-indent: 20.149993896484375pt; white-space: pre-wrap;"><span style="font-size: large;">The Arbitrator also considered and rejected the BOP's claims that the grievance was insufficiently specific and untimely.</span></span></p><p dir="ltr" style="line-height: 1.399440050125122; margin: 3.809844970703125pt 1.95892333984375pt 0pt 8.300994873046875pt; text-align: justify; text-indent: 20.149993896484375pt;"><span style="font-family: Times, serif; text-indent: 20.149993896484375pt; white-space: pre-wrap;"><span style="font-size: large;"><br /></span></span></p><p dir="ltr" style="line-height: 1.399440050125122; margin: 3.809844970703125pt 1.95892333984375pt 0pt 8.300994873046875pt; text-align: justify; text-indent: 20.149993896484375pt;"><i><span style="font-family: Times, serif; text-indent: 20.149993896484375pt; white-space: pre-wrap;"><span style="font-size: large;">Update: The Federal Labor Relations Authority denied the Agency's exceptions and upheld Arbitrator Kininmonth's award. </span></span><span style="font-family: Times, serif; text-indent: 20.149993896484375pt; white-space: pre-wrap;"><span style="font-size: large;">73 FLRA No. 5 (May 26, 2022). The opinion can be found <a href="https://www.flra.gov/system/files/decisions/v73_5.pdf" target="_blank"><span style="color: #2b00fe;">here</span>. </a></span></span></i></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;"><span id="docs-internal-guid-c846fc8a-7fff-acea-1531-513a49dcf8b9"></span><br class="Apple-interchange-newline" /></span></p><p style="font-family: "Times New Roman"; font-stretch: normal; line-height: normal; margin: 0px;"><span style="font-size: large;"> </span></p>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-32215295424662449442020-06-07T10:40:00.000-04:002020-06-07T10:40:18.085-04:00Another case rejecting termination of an officer because of prosecutor's unsupported decision not to use them as a witness<div style="font-stretch: normal; line-height: normal;">
<span style="font-size: large;"><span style="font-family: "helvetica neue";">A recent post (</span></span><a href="https://arbitrationmatters.blogspot.com/2020/05/state-attorneys-refusal-to-use-police.html"><span style="color: blue; font-size: large;">State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer</span></a><span style="font-size: large;"><span style="font-family: "helvetica neue";">) addressed the issue of a City's termination of a police officer after the prosecuting attorney's office announced it would not use the officer as a witness in any proceeding.</span></span><br />
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<span style="font-size: large;"><span style="font-family: "helvetica neue";"> In a case raising a similar issue, the Commonwealth Court of Pennsylvania has affirmed a decision refusing to vacate an arbitrator's award that reinstated a police officer dismissed because the District Attorney's office would not prosecute cases based on the uncorroborated testimony of the officer.</span><span style="color: blue; font-family: "helvetica neue";"> </span><a href="https://drive.google.com/file/d/14SoCS2oeXq9DDYYeTnBQrjZ6sy4ILHv_/view?usp=sharing" style="font-family: "helvetica neue";"><span style="color: blue;">Borough of Gettysburg v. International Brotherhood of Teamsters Local 776, Police Labor Organization</span></a><span style="font-family: "helvetica neue";">. </span></span><br />
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<span style="font-size: large;"><span style="font-family: "helvetica neue";">The City's action took place after it received a letter from the District Attorney's Office confirming its position but requesting that the City not "disseminate this letter or the information contained therein to any other non-law enforcement entity." At a Loudermill hearing, the officer was advised of the contents of the letter but a copy of the letter was not produced. The officer's employment was subsequently terminated. The matter was grieved and the Arbitrator found no just cause for the termination.</span></span><br />
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<span style="font-size: large;"><span style="font-family: "helvetica neue";">Seeking to vacate the award, the City claimed that it improperly ordered it to reinstate an officer who could not perform the essential duties of his position. Rejecting this position the Commonwealth Court noted:</span></span><br />
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<i><span style="font-size: large;">Here, unlike in SCI-Forest, the Arbitrator did not find Grievant committed misconduct and place restrictions on Grievant as a result thereof. Rather, the Arbitrator opined: “I am unable to address the substantive merits of the Borough’s termination decision in this case, since I find that the Borough failed to provide [] Grievant adequate procedural due process prior to terminating his employment.” ... In sum, the Arbitrator determined that, since Grievant was not given any basis for his discharge, and therefore no ability to defend himself at the required Loudermill hearing, the Borough “did not have just cause to fire him.”</span></i><br />
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<span style="font-size: large;">The Court also rejected the City's claim that it was denied due process because the Arbitrator concluded that it had an obligation under Loudermill to inform the grievant <i>why</i> the DA's Office no longer intended to prosecute cases involving the Grievant. The Court concluded:</span></div>
<span style="font-size: large;"><br /><i>Here, the Borough is essentially asking this Court to find that the Borough’s denial of Grievant’s due process rights in not providing the reasons for his dismissal is justified because the Borough could not obtain said information, and for the Arbitrator to base his award on the Borough’s failure to provide said information denied the Borough its due process rights. This Court cannot draw such a conclusion. The Borough chose to discharge Grievant due to a letter for which the underlying basis was unknown. Thus, the Borough put it itself in a situation wherein it could not provide the required information, not the Arbitrator. Accordingly, the Borough’s due process rights were not violated. </i></span>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com1tag:blogger.com,1999:blog-9042249538440655396.post-79684318162719294712020-05-10T12:20:00.002-04:002020-07-11T16:01:54.437-04:00State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer<br />
<span style="font-size: large;">Grievant began his employment with the Marco Island, FL Police Department in October 2006. He was hired 18 months after having been terminated by the Collier County Sheriff's Office after it was claimed he had given misleading testimony during an investigation.</span><br />
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<span style="font-size: large;">In November 2010 grievant was dispatched to a DUI. He testified in connection with that case at an administrative hearing. In February 2011 the presiding judge at that proceeding received a report of an allegation by another bargaining unit employee that grievant had lied during the hearing. The allegation was reported to the City and a meeting was held between the Police Chief and a representative of the State Attorney Office (SAO). No action was taken by the City, but the SAO independently reviewed the matter. In November 2013 the SAO sent a letter to the Police Chief advising that because of the allegation of untruthfulness during the 2010 hearing, and grievant's earlier dismissal from the Colier County Sheriff's Office, grievant would no longer be used as a witness in the prosecution of criminal cases. Six months later, an Internal Affair's investigation was opened relating to the alleged untruthful testimony in 2010, but the investigation remained uncompleted when the assigned investigator left the Department. </span><br />
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<span style="font-size: large;">In February 2015 the SAO sent a second letter to the Department, restating its position that it would not use grievant in the prosecution of criminal cases. A new investigator was assigned to the still open Internal Affairs investigation, and in April 2016 a report was issued sustaining the allegation of untruthfulness in the 2010 testimony. However, because of the length of time that had elapsed, grievant could not be disciplined. Grievant continued his employment but the SAO declined to prosecute on almost 80% of the cases grievant handled.</span><br />
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<span style="font-size: large;">In January 2019 a new City Manager was appointed, and, after an article <span style="caret-color: rgb(0, 0, 255); color: blue;">(</span><a href="https://www.marconews.com/story/news/crime/2019/02/08/marco-brady-cop-still-patrol-despite-obstacle-prosecuting-cases/2704013002/"><span style="color: blue;">State attorney's office declined to prosecute multiple Marco Island criminal charges last month due to 'Brady cop'</span></a><span style="caret-color: rgb(0, 0, 255); color: blue;">) </span>appeared in a local newspaper in February 2019,<span style="color: blue;"> </span> the City advised grievant that he would be removed from his position as a police officer. The City noted the termination was premised solely on grievant's inability to testify, and not on either the allegations raised in connection with his employment by the Collier County Sheriff's Office or the results on the Department's Internal Affairs investigation. It held out the possibility of transfer to a civilian position if one existed, an offer grievant declined.</span><br />
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<span style="font-size: large;">A grievance was filed, and ultimately submitted to Arbitrator Gerard Fowler for resolution.</span><br />
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<span style="font-size: large;">Arbitrator Fowler rejected the City's reliance on the management rights provisions of the cba, and its claim that the proposed removal was not a disciplinary action. He observed:</span><br />
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<i><span style="font-size: large;">Whether a party chooses to refer to a grievant's removal as a termination rather than a discharge is a distinction without a difference. Any union member covered by a collective bargaining agreement with a just cause provision must be provided with just cause if the termination is to stand. Accordingly, the Arbitrator finds that based upon all of the evidence and testimony before him Grievant was discharged as that term is set forth in arbitral precedents. Therefore, this arbitration centers on whether the Employer properly discharged Grievant.</span></i><br />
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<span style="font-size: large;"><i><br /></i><span id="docs-internal-guid-6318f9f5-7fff-a4de-5dcb-5a4f7176f919"></span> Turning to the merits, Arbitrator Fowler concluded that the City's reliance of the refusal of the SAO to use grievant as a witness, in the absence of any evidence that he had in fact engaged in any dishonest behavior, was insufficient to support the termination. He found:</span><br />
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<i><span style="font-size: large;">The record clearly shows the City never attempted to prove or present any proof regarding Grievant's dishonesty. Grievant did present testimony indicating that he did not misrepresent any fact while testifying in 2010 or any other time. Clearly the only basis to terminate Grievant from his position is based upon the letter from the State Attorney. This letter is unsupported by evidence or details of any investigation on the part of the SAO. There is no judicial determination on the record indicating that Grievant has ever been dishonest in his testimony </span></i></div>
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<i><span style="font-size: large;">Accordingly, the testimony and evidence in this case failed to establish just cause to discharge grievant. The grievance must be sustained. Grievant is entitled to be reinstated to his position of police officer and made whole for all of the losses he suffered as a result of his discharge by the City, and it shall be so ordered.</span></i><br />
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Arbitrator Fowler's award in City of Marco Island, Florida and Gulf Coast Florida Police Benevolent Association, Inc. can be found <a href="https://drive.google.com/file/d/1RHHZZ1XOSBj1EV0UZB-4UrYLZsBi_n4a/view?usp=sharing"><span style="color: blue;">here</span></a><span style="color: blue;">.</span></span></div>
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<span style="font-size: large;">Similar issues are addressed in <a href="https://arbitrationmatters.blogspot.com/2020/03/arbitrator-finds-police-officer-did-not.html"><span style="color: blue;">Arbitrator finds police officer did not intentionally lie about warrant</span> <span style="color: blue;">application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination</span></a><span style="color: blue;"> </span>and <a href="https://arbitrationmatters.blogspot.com/2019/12/arbitrator-upholds-termination-of-brady.html"><span style="color: blue;">Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness</span></a></span></div>
John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-91519658425769252712020-05-03T11:01:00.000-04:002020-05-03T11:01:38.895-04:00Court rejects Nurses Association request for reverse Boys Market injunction requiring hospital to provide ppe and other Covid related safety measures<span style="font-size: large;">The District Court for the Southern District of New York rejected the request of the New York State Nurses Association for a reverse Boys Market injunction seeking to compel Montefiore Medical Center to take certain steps to mitigate the risk that nurses might contract Covid-19 while the Union's grievance was pending. <a href="https://drive.google.com/file/d/1Ukdd1UpJBxM21vc58eSn5Aw0m_blHWcX/view?usp=sharing"><span style="color: blue;">The New York State Nurses Association v. Montefiore Medical Center</span></a>.</span><br />
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<span style="font-size: large;">The Union sought, inter alia, to have the Medical Center provide PPE, space to don and doff such equipment, and "adequate" coronavirus testing. A copy of the Union's complaint for injuntive relief is available <a href="https://www.courtlistener.com/docket/17081570/the-new-york-state-nurses-association-v-montefiore-medical-center/"><span style="color: blue;">here</span></a>.</span><br />
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<span style="font-size: large;">Noting how narrow the reverse Boys Market exception is to the Norris LaGuardia limitation on injunctions in labor disputes, the Court found it was without jurisdiction to grant the requested injunction. It agreed with the position of the Medical Center that the requested injunction "does not seek to preserve the status quo. Instead, it 'seeks to create a new status quo that gives the Union everything (and more) it requests in the grievance.' "</span><br />
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<span style="font-size: large;">While denying the request, the Court encouraged the parties to attempt to resolve the dispute quickly:</span><br />
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<i><span style="font-size: large;">The Court does so with a plea to both sides to continue their efforts in good faith to reach an amicable resolution of their disputes. Both sides presumably share the ultimate goal of maximizing protections for healthcare workers on the front lines of the battle against a vicious disease without compromising patient care. And the parties are plainly in a better position than either the Court or an arbitrator to find the best ways to achieve that goal despite limited resources and ever changing circumstances. Failing an amicable resolution, the Court hopes that the parties can and will expedite the arbitration proceedings. This Court may lack authority to address NYSNA's concerns, but to the extent these concerns are valid, it is critical that they be addressed as swiftly as possible. Lives may hang in the balance, and the NYSNA nurses deserve as much. </span></i>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-51815166965158441252020-04-19T10:48:00.001-04:002020-04-19T10:48:30.209-04:00CA2: Reinstatement without back pay for "first time" sexual harasser not contrary to public policy<span style="font-size: large;">In a Summary Order, the Second Circuit has affirmed the decision of the District Court (<a href="https://drive.google.com/file/d/1JqQLL_JiQmDqtDBJUt_mjQgyjwyiBrRb/view?usp=sharing"><span style="color: blue;">here</span></a>) refusing to vacate an <a href="https://drive.google.com/file/d/1fYYlV-QmFJ0ojIpBL9SIDs5fF1kiLIEt/view?usp=sharing"><span style="color: blue;">Award</span></a> of Arbitrator Carmelo Gianino. Arbitrator Gianino had ordered the reinstatement, without backpay, of grievant, a security guard, who had been dismissed "for creating a hostile work environment when he made sexualized comments about a female staff member's wardrobe and appearance." <a href="https://www.leagle.com/decision/infco20200416052"><span style="color: blue;">Barnard College v. Transport Workers Union of America, AFL-CIO</span> <span style="color: blue;">Local 264.</span></a></span><br />
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<span style="font-size: large;">Grievant, who was also the Local Union President, was representing another employee in a disciplinary hearing when he claimed he was unable to question the witness because her attire made him uncomfortable. When pressed for the reason for his discomfort he replied that her blouse was cut too low. </span><br />
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<span style="font-size: large;">The Arbitrator found that Grievant's conduct warranted discipline, but that termination was too severe. He ordered grievant's reinstatement without backpay and with loss of seniority credit for the time he was off. </span><br />
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<span style="font-size: large;">The College sought to vacate the Award, asserting that it was contrary to public policy, to law, and beyond the authority of the Arbitrator. The District Court rejected all of these claims, and confirmed the award. </span><br />
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<span style="font-size: large;">The Second Circuit affirmed. It found no violation of public policy, noting:</span><br />
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<i><span style="font-size: large;">It is certainly the case, as we have long noted, that "[t]he public policy against sexual harassment in the work place is well-recognized." Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, AFL-CIO, <a href="https://www.leagle.com/cite/915%20F.2d%20840">915 F.2d 840</a>, 844 (2d Cir. 1990). But we have only found that this public policy counsels against deference to an arbitral award when an arbitrator reinstates a terminated individual who had engaged in multiple acts of sexual harassment—including acts that had already served as the basis of prior arbitral rulings against that individual. Id. at 845. In such instances, reinstatement would indeed violate public policy, and vacatur of the arbitral award would be justified.<br />In the present case, however, [grievant] was being punished for only a single act, and public policy does not counsel as strongly against deference to the arbitral award</span></i><br />
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<span style="font-size: large;">The Court also observed that, as a result of the Award, grievant lost his claim for approximately $80,000.00 in back pay, and that such a punishment was "consistent" with a public policy of eradicating sexual harassment from the workplace. </span></div>
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<span style="font-size: large;">Finding no merit in any of the College's arguments, the Court affirmed the judgment of the District Court. </span></div>
John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com3tag:blogger.com,1999:blog-9042249538440655396.post-896755505272728002020-04-12T11:34:00.003-04:002020-04-12T11:39:42.761-04:00Does an award of "make whole" relief, without more, imply an offset of interim earnings?<span style="font-size: large;"><br />That was the question presented to the District Court in <a href="https://law.justia.com/cases/federal/district-courts/pennsylvania/pawdce/1:2018cv00330/250511/42/"><span style="color: blue;">United Electrical, Radio & Machine Workers of America and Local 506 v. General Electric Company.</span></a><span style="color: blue;"><br /></span><br />GE dismissed an employee for unacceptable attendance. That action was grieved and ultimately submitted to arbitration. The parties stipulated the issue as "Was the discharge of [grievant] for just cause? If not, what should be the remedy?"<br /><br />Arbitrator Christopher Miles issued an <a href="https://drive.google.com/file/d/1kMMq_mvpZop779TUlB9i0ZaIp3K4Gbfp/view?usp=sharing"><span style="color: blue;">award</span></a> finding the termination to have been made without just cause. He sustained the grievance, and ordered that grievant be reinstated and "made whole for lost wages and benefits."<br /><br />The Company reinstated grievant, and asked the Union for information on any earnings of grievant during his time off. The Union declined to produce the information, stating that they believed the award was final and binding and noting that the Company had not raised the issue of the appropriate remedy or mitigation of back pay during the hearing. </span><br />
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<span style="font-size: large;">The Company requested the Arbitrator to participate in a conference call, but the Union opposed the request. Arbitrator Miles was unwilling to participate in such a call without the agreement of both parties, stating that since he had not retained jurisdiction both parties would have to agree to his continuing involvement.<br /><br />The union filed a <a href="https://www.courtlistener.com/docket/8088244/united-electrical-radio-machine-workers-of-america-v-general-electric/"><span style="color: blue;">comp</span></a><a href="https://www.courtlistener.com/docket/8088244/united-electrical-radio-machine-workers-of-america-v-general-electric/">l<span style="color: blue;">aint</span></a> seeking to confirm the award, requesting an order compelling the Company to comply with the Award, including the "make whole" remedy.<br /><br />The District Court for the Eastern District of Pennsylvania granted the union's request. The Court concluded that the decision was not ambiguous. It agreed with the Union's position that the "clear meaning" of the Award "does not provide for any offset or mitigation." The Court observed that the Award itself contained no language that the make whole remedy was subject to offset or mitigation, and that, while the absence of such language was not dispositive, "the silence of the Arbitration Award on this matter speaks volumes."<br /><br />The Court also relied on the Arbitrator's failure to retain jurisdiction as suggesting that the Award was not intended to create issues that would need to be resolved after the fact, as well as the absence of any language in the cba providing for offset. The Court noted further:<br /><br /><i>Moreover, GE did not raise the issue of offset with Arbitrator Miles at all, despite the fact that the appropriate remedy was one of the issues the arbitrator was deciding. Regardless of whether GE’s decision not to raise the issue at the hearing or in its post-hearing brief constituted a “waiver” of its right to do so, it does suggest that offset and mitigation were not issues GE deemed to be relevant.</i></span><br />
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<span style="font-size: large;"><br />While recognizing that there was no "binding" Third Circuit precedent on the question of whether the absence of language on offsets or mitigation unambiguously establishes that none were intended, it found "persuasive" authority from several other circuits demonstrating that "as a general matter, the absence of language regarding offsets or mitigation unsurprisingly means that none were intended."<br /><br />The Court also rejected the Company's argument that "there is a universal principle, at least in labor and employment law, that a make whole remedy is not intended to make the aggrieved party more than whole, and therefore that interim outside income must be deducted from the award." It noted that the cases relied on by the Company involved employment discrimination statutes, where the courts were dealing with language specific to those statutes, finding:<br /><br /><i>The cases do not establish that offsets and mitigation are legally required in all labor and employment cases and in no way provide a basis for how to interpret the meaning of a make whole remedy that is silent as to the matter. </i><br /><br />The Court concluded:<br /><br /><i>Requiring that backpay be offset, as GE asserts, is not uncommon, but that is not what happened here.<br />Accordingly, the Court will enforce the plain language of the Arbitration Award that provides simply that [grievant] be made whole for lost wages and benefits.</i><br /><br />A similar issue is discussed in <a href="https://arbitrationmatters.blogspot.com/2017/10/court-employer-waived-interim-earnings.html"><span style="color: blue;">Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator</span></a></span></div>
John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-71517117618146381472020-04-05T15:31:00.000-04:002020-06-09T16:47:27.799-04:00Two recent cases on challenges to an arbitrator's supplemental award - AAA Rule 40, functus officio, and punitive damages<span style="font-size: large;"><br /></span>
<span style="font-size: large;">In <a href="https://drive.google.com/file/d/1tTU4g2Un6Csw38D1cgeG-SY69EiSVSw3/view?usp=sharing"><span style="color: blue;">Verizon Pennsylvania LLC v. Communications Workers of America, Local 1300</span></a>, the District Court for the Eastern District of Pennsylvania vacated the "Supplemental Award on the Remedy" of Arbitrator Barbara Zausner.<br /><br /> Arbitrator Zausner, chairing a three person panel, had granted a grievance challenging the Company's implementation of a program to have certain set top boxes related to its FIOS TV service delivered to customers by common carrier. Previously the boxes were either carried to the customer location by bargaining unit technicians or picked up by the customer for self installation. In sustaining (<a href="https://drive.google.com/file/d/1QP30rfEigf60-gXtdq3XKu72f5_cH-ld/view?usp=sharing">here</a>) the original grievance, the panel (with the Company representative dissenting) concluded:<br /><br /><i>We conclude that mailing set top boxes is different from the customer picking up the set top box from a company location because the customer is not a contractor. But employees of other employers who do the delivery work as part of their jobs, are getting the advantage of work that is protected by Section 17.01. Therefore, the Company must cease and desist from mailing the product to customers when the Company is to provide the installation or maintenance on a set top box.</i><br /><br />The panel referred the question of what the monetary remedy should be to the parties for resolution, retaining jurisdiction should the parties be unable to agree. The parties were in fact unable to agree, and the matter was returned to the panel. <br /><br />In a Supplemental Award (<a href="https://drive.google.com/file/d/1yj5c-dL-0ZX3hvC_2MYLCuwwDRRUzRAa/view?usp=sharing">here</a>) a majority of the panel determined, inter alia:<br /><br /><i> A monetary remedy in this matter is directed to compensate these employees and to deter future violations of Article 17.01. The remedy requested consists of: the number of set top box shipments and deliveries to Pennsylvania customers (other than by customers themselves, and including deliveries made by Assistant Technicians), from the date of the grievance until the Company returns the disputed work to the bargaining unit Services Technicians, at the straight time rate of two hours per delivery at the top step wage rate. ...</i><br /><br />Verizon filed suit to vacate both the merits award and the Supplemental Award on the Remedy, and the Union filed to confirm both. <br /><br />The Court confirmed the merits award, but vacated the Supplemental Award. While the court rejected several of the Company's challenges to the Supplemental Award, it found other elements conflicted with, or went beyond, the merits Award. <br /><br /> The Court agreed with the Company that those elements of the remedial order were barred by the doctrine of "functus officio," a doctrine the Court described as "a shorthand term for a common-law doctrine barring an arbitrator from revisiting the merits of an award once it has issued." It concluded that<br /><br /><i>A conflict exists between the decisions: the Merits Award explicitly held that customer installation did not violate the CBA while the Remedy Award barred such installation unless the customer personally transported the set top box to her home. By its terms, the Merits Award permitted delivery by a Union technician with installation by the customer, while the Remedy Award foreclosed that option. Accordingly, the injunction barring any customer self-installation can only stand if one of the exceptions to functus officio applies. </i>[footnote omitted]<br /><br />Concluding that no such exception existed, the Court determined that "the Remedy Award's order regarding customer self-installation was improper and must be vacated." The Court similarly agreed with the Company "that the functus officio doctrine barred the Panel from including installation time from all 1,373,486 installations in the remedy because, in the Merits Award, the Panel held that customer self-installation did not violate the CBA."<br /><br />Unrelated to the functus officio issue, the Court also concluded that the monetary award in the Supplemental Award constituted an improper award of punitive damages, something not provided for in the CBA. It noted that none of the grievants lost income since they had all been fully employed, and that the Award explicitly provided that the award's purpose was "to deter future violations ...."<br /><br />The Court remanded the dispute to the arbitration panel "for calculation of a remedy consistent with this opinion."<br /><br />A second case, <a href="https://www.leagle.com/decision/infco20200330096"><span style="color: blue;">Communications Workers of America v. Southwestern Bell Telephone Company</span></a>, also involves the impact of an arbitrator's supplemental award. In that case, Arbitrator Samuel J. Nicholas initially upheld a grievance that claimed the Company violated its CBA when it assigned certain work to employees in a lower paid title in the same bargaining unit. Arbitrator Nicholas concluded that<br /><br /><i> no language in the Agreement restricts or forbids Management from making said changes. Thus, on its face, the Union's assertion that Management's actions violated the provisional language of the Settlement Agreement falls short. </i><br /><br />However, he found that Union Exhibit 4 supported the Union's position that the assignment of duties could not be made without negotiations. In light of that Exhibit he concluded:<br /><br /><i>Your Arbitrator is quite aware that he is forced to balance the given practice with Management's right to operate in a manner that supports the mission of the Company. Absent clear practice that the parties have chosen to abide by and despite the nature of the proposed changes and the additional requirement associated with the proposed changes, I would be inclined to find that no violation of the Agreement occurred. However, in light of the aforementioned practice, and the manner in which it has been observed in the past, your Arbitrator holds that Company's decision to unilaterally apply new job duties without consulting the bargaining unit marked a violation of the long-standing practice that the parties share.</i><br /><br /> Shortly after the award issued, the Company filed a Request for Reconsideration, pointing out that Union Exhibit 4, which had been admitted over the Company's objection, was the product of, and related to, a different bargaining unit. The Union opposed the request, arguing that while Rule 40 of the American Arbitration Association Voluntary Labor Arbitration Rules (incorporated into the parties' cba) allowed an arbitrator to correct "clerical, typographical, technical, or computational errors" it prohibited an arbitrator from redetermining the merits of a claim already decided. <br /><br />Arbitrator Nicholas found that he had committed a "technical error" in his reliance on Union Exhibit 4 and was "obliged to correct the noted mistake." He found no violation of Rule 40 in this action. On the merits he found that, as he had referenced in his earlier award, in the absence of applicability of Union Exhibit 4 he would find no violation of the cba. Accordingly he rescinded his earlier award "in favor of a ruling that no contractual violation occurred" and denied the grievance.<br /> <br /> The Union filed suit, challenging the second award as contrary to the finality language of the cba and the provisions of AAA Rule 40, and seeking to confirm the original award. The District Court rejected the Union's challenge in an opinion addressed in <a href="https://arbitrationmatters.blogspot.com/2019/08/res-judicata-cwa-and-southwestern-bell.html"><span style="color: blue;">Res judicata, CWA and Southwestern Bell, and a question of timeliness of a Loudermill hearing</span></a><span style="color: blue;">. </span><br /><br /> The Fifth Circuit has affirmed the District Court's decision. <a href="https://www.leagle.com/decision/infco20200330096"><span style="color: blue;">Communications Workers of America, AFL-CIO v. Southwestern Bell Telephone Company </span></a><br /> <br /> The Court concluded that the Arbitrator's interpretation of AAA Rule 40 was "arguable" and within his authority. In light of the deference accorded to arbitration awards, it was entitled to be confirmed. <br /><br />Addressing the functus officio issue, it noted further:<br /><br /><i>CWA argues that the arbitrator's actions ignored the "finality" provision in the parties' CBA and the common law doctrine of functus officio. This argument misapprehends the purpose of Rule 40. While it is true that the doctrine of functus officio "bars [the] arbitrator from revisiting the merits of an award once the award has been issued," Brown v. Witco Corp., <a href="https://www.leagle.com/cite/340%20F.3d%20209">340 F.3d 209</a>, 218 (5th Cir. 2003 (citation omitted)), Rule 40 "essentially codifies the common law doctrine of functus officio," Int'l Bhd. of Elec. Workers, Local Union 824 v. Verizon Fla., LLC, <a href="https://www.leagle.com/cite/803%20F.3d%201241">803 F.3d 1241</a>, 1248 (11th Cir. 2015) (citation omitted). Though the CBA provided that the decision of an arbitrator "shall be final," the CBA also authorized the arbitrator to reconsider his decision as long as it complied with Rule 40. Given the interlocking nature of these provisions, CWA's argument that the arbitrator violated the doctrine is a restatement of its argument that the arbitrator violated Rule 40—not an additional basis for relief. Because the arbitrator did not ignore Rule 40 in issuing his decision, he also did not ignore the CBA's finality provision or the functus officio doctrine.</i><br /><br />The functus officio doctrine is also addressed in these posts:<br /> <br /> <br /> <span style="color: blue;"><a href="https://arbitrationmatters.blogspot.com/2015/10/functus-officio-precludes-arbitrator.html"><span style="color: blue;">"Functus Officio" precludes arbitrator from reconsidering award</span></a> </span><br /><span style="color: blue;"><br /><a href="https://arbitrationmatters.blogspot.com/2019/01/timeliness-functus-officio-mitigating.html"><span style="color: blue;">Timeliness, functus officio, mitigating circumstances, and use of force</span></a></span><br /><span style="color: blue;"><br /><a href="https://arbitrationmatters.blogspot.com/2013/01/arbitrator-concludes-functus-officio.html"><span style="color: blue;">Arbitrator concludes "functus officio" precludes reconsideration of award</span></a> </span><br /><br /><a href="https://arbitrationmatters.blogspot.com/2015/08/arbitrators-failure-to-follow-prior.html"><span style="color: blue;">Arbitrator's failure to follow prior award not a basis for setting aside award</span></a><br /> <br /></span>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-82082937492298532162020-03-29T10:21:00.000-04:002020-03-29T10:21:28.025-04:00District Court finds Arbitrator exceeded authority by awarding attorney's fees to Union as a remedy for Employer's "frivolous" position<div style="font-family: "Helvetica Neue"; font-size: 16px; font-stretch: normal; line-height: normal;">
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<span style="font-kerning: none;">An earlier post noted competing efforts to vacate or confirm an arbitrator's back pay award for an individual whose employment had been terminated by Indiana and Michigan Electric Company. <a href="https://arbitrationmatters.blogspot.com/2019/10/recent-petitions-to-vacate-persona-non.html"><span style="-webkit-font-kerning: none; color: blue; font-stretch: normal; line-height: normal;">Recent Petitions to Vacate - Persona non grata,</span><span style="-webkit-font-kerning: none; color: #420178; font-stretch: normal; line-height: normal;"> </span><span style="-webkit-font-kerning: none; color: blue; font-stretch: normal; line-height: normal;">a dispute over back pay, and transfer of work to a non-unit employee</span></a></span><span style="color: blue; font-kerning: none;">. </span><span style="font-kerning: none;">The Union (IBEW Local 1392) had sought an award of approximately $240,000.00. The Company calculated its liability at "negative $29,166.51.00."</span></div>
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The Award of Arbitrator Cynthia Stanley substantially adopted the Union's calculation, awarding a little more than $260,000.00 (which included interest on the backpay). (<a href="https://drive.google.com/file/d/11no75ye0MF44g5m9d7NUzl27KJfdM4Cv/view?usp=sharing"><span style="-webkit-font-kerning: none; color: blue; font-stretch: normal; line-height: normal;">here</span></a>) She also ordered the Company to pay the Union's attorney's fees of $2,560.00 for the Supplemental Briefing period on back pay, finding the Company's position on the back pay issue "frivolous and in bad faith." (<a href="https://drive.google.com/file/d/1AJ0xv7_0BdcRORubpEcXWmd-Y2mC0VqG/view?usp=sharing"><span style="-webkit-font-kerning: none; color: blue; font-stretch: normal; line-height: normal;">here</span></a>)</span></div>
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The District Court for the Northern District of Indiana has recently rejected most of the Company's challenges to the back pay award. <a href="https://www.leagle.com/decision/infdco20200316b46"><span style="-webkit-font-kerning: none; color: blue; font-stretch: normal; line-height: normal;">Indiana Michigan Power Company v. International Brotherhood of Electrical Workers, Local 1392</span></a> The Court rejected the Company challenge to the Arbitrator's decision on calculation of back pay, the use of the maximum overtime and double time worked by an individual employed during the back pay period as an appropriate measure of damages, and the Arbitrator's declining to adopt the Company's position on grievant's alleged failure to mitigate his damages. It did, however, vacate the award of attorney's fees. In doing so, the Court noted that since the cba applicable to this dispute specifically provided that "each party 'shall' bear their own expenses, the Arbitrator must have based her award on some body of thought, or feeling, or policy, or law that is outside the contract." The Court recognized that the Seventh Circuit has held that an arbitrator has discretion to award attorney's fees where the contract is silent on the issue</span><span style="color: blue; font-kerning: none;">.</span><span style="-webkit-font-kerning: none;"><span style="color: blue;"> </span><a href="https://www.leagle.com/decision/infco20100604109"><span style="color: blue;"><span style="-webkit-font-kerning: none;">P</span><span style="-webkit-font-kerning: none;">rairie Installations, Inc. v. Chi. Reg'l</span><span style="-webkit-font-kerning: none;"> </span></span><span style="-webkit-font-kerning: none;"><span style="color: blue;">Council of Carpenters</span></span></a><span style="color: blue;">.</span></span><span style="font-kerning: none;"> Here, however, the cba was not silent on the issue but contained restrictive language. It also observed that the issue in this case "occup[ies] a unique category" in that the award of fees was not imposed as a remedy for a violation of the cba but "as a remedy for the Company's conduct of the presentation of arguments concerning the correct amount of back pay damages."</span></div>
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On the fees issue the Court concluded:</span></div>
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<i>Ordering fees due to bad faith or frivolous argument would require an addition to, or modification of, the fee language. But the CBA specifically stated that the arbitrator "shall have no authority to . . . add to, detract from, or in any way modify the terms of the Agreements." Accordingly, the Court agrees that the award of attorney fees should be vacated.</i></span></div>
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The Court also found that the Arbitrator's award of payment to grievant for 8 hours of unused Personal Day Off time was duplicative of the award for back pay for the entire period grievant was off work.</span></div>
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The Union's request to confirm the awards remains pending, and the Court has requested the parties to identify any further issues and discuss the procedural posture of the case in light of the Court's rulings.</span></div>
John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-47463878360338913932020-03-22T16:38:00.000-04:002020-03-22T16:49:06.730-04:00Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination<span style="font-size: large;">After a thorough review of the facts, Arbitrator Joseph Daly concludes that Eden Prairie police officer Travis Serafin did not lie about his handling of an application for a search warrant, and did not intend to mislead the court when he testified. <a href="https://drive.google.com/file/d/18APLr7HhGOBwrS8P9tUnoIDnEhRCRRYW/view?usp=sharing"><span style="color: blue;">Law Enforcement Services, Inc., Brooklyn Center, Minnesota [Travis Serafin] And City of Eden Prairie, Minnesota</span></a>. Those allegations were the basis for the County Attorney's office designation of the officer as a Brady officer and his decision that he would not use the officer as a witness in any case. As a result of the County Attorney's decision, the Department terminated the employment of Officer Serafin for his "inability to perform an essential function of his job as a police officer" i.e to provide courtroom testimony.</span><br />
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<span style="font-size: large;">While the factual background is somewhat complicated, essentially the dispute arose when grievant sought to replace what he described as the lost first page of an application for a search warrant. In doing so, he printed out a new first page. That new page was somewhat different from the first page that had been on the original application. Grievant testified that the new page, consistent with all of his other search warrant applications, contained language seeking authorization to search any vehicles on the property. That language, according to grievant, had inadvertently been excluded from the first version of the affidavit, something grievant asserted he was not aware of at the time.</span><br />
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<span style="font-size: large;">The confusion about that discrepancy led to grievant being disciplined by a reprimand, and removal from a Task Force and SWAT and required to attend additional ethics courses and work with a supervisor in the creation and execution of search warrants. In response to a grievance filed over the discipline, the Department noted that "if we thought you had done this on purpose we would have fired you." That discipline was upheld by the City Manager as "final" and grievant worked for two and a half months as a patrol officer without incident.</span><br />
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<span style="font-size: large;">Thereafter, the County Attorney notified the Department that it believed grievant had intentionally modified the application after it had been signed and had testified falsely about the circumstances. The Count Attorney notified the Department that "it cannot permit Mr. Serafin to ever be called as a witness in any case prosecuted by the office."</span><br />
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<span style="font-size: large;">The Union claimed that the Department's actions violated the principle of double jeopardy, and were contrary to a MOU providing that a Brady designation "is not, in and of itself, related to the employee’s employment and will not be used by Eden Prairie PD for disciplinary purposes.” It also asserted that any conclusion that grievant intentionally misrepresented the circumstances surrounding the creation of the new page was factually unsupported. It relied on prior arbitration awards, including Benton County and Law Enforcement Labor Services, Inc. (discussed in <a href="https://arbitrationmatters.blogspot.com/2018/11/arbitrator-rejects-claim-that-deputys.html"><span style="color: blue;">Arbitrator rejects claim that Deputy's "isolated lying incident"</span> <span style="color: blue;">makes him Giglio impaired or provides just cause for termination</span></a><span style="color: blue;">)</span> and sought to distinguish the decision in City of Cloquet and Teamsters Local 346 (discussed in <a href="https://arbitrationmatters.blogspot.com/2019/12/arbitrator-upholds-termination-of-brady.html"><span style="color: blue;">Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness</span></a><span style="color: blue;">)</span>. The City maintained that the arbitrator did not have the authority to modify the County Attorney's decision concerning who to call as a witness and therefore "the only question for the arbitrator in this proceeding is whether Mr. Serafin’s inability to perform an essential function of his job as a police officer—provide courtroom testimony—constitutes 'just cause' for his termination."</span><br />
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<span style="font-size: large;">Substantially sustaining the grievance, Arbitrator Daly concluded that grievant "is a credible witness who made a mistake." He noted:</span><br />
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<i><span style="font-size: large;">This arbitrator has no authority to tell the Hennepin County Attorney’s Office, the Ramsey County Attorney’s Office, or the City of Eden Prairie City Attorney’s Office what witnesses they may call. But he does have the authority to opine that Mr. Serafin has faced a grave injustice in being classified as a Brady/Giglio officer. He should not be classified as an incredible officer. Just the opposite. His entire professional experience as a police officer, his hard work, his training, the very high opinion that his fellow officers hold of him, and his testimony show he is highly credible and capable. If this arbitrator had the authority to order the Hennepin County Attorney’s Office, the Ramsey County Attorney’s Office, and the City of Eden Prairie Attorney’s Office to remove its label of Brady/Giglio as applied to Officer Serafin and change each decision to no longer call Officer Serafin to testify, I would do so. But I do not have that authority. On the other hand, I would hope that Officer Serafin would have an opportunity to continue his work as a skilled and respected police officer in the City of Eden Prairie or in some other city he chooses to work. At least if he is called in a serious case for which he has critical evidence, such as murder in the first degree case, and the defense attorneys are given the information about his unfortunate mistake in the Holmes search warrant, he can use some of the language in this arbitration hearing to let the judge and jury know that at least an arbitrator who heard the facts in-full has concluded that Officer Serafin is a highly credible police officer who was terminated without just cause. </span></i><br />
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He ordered the grievant's reinstatement to his former position with a loss of back pay for the time off because of his "unintentional mistake."</span>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com4tag:blogger.com,1999:blog-9042249538440655396.post-16678861058538818332020-02-06T14:34:00.000-05:002020-02-06T14:34:17.392-05:00Recent decisions: Invocation of spousal privilege is not a violation of the duty to cooperate, off duty misconduct, progressive discipline, and the effect of the absence of an explicit just cause provision in the cba.<br /><span style="font-size: large;"><b>Officer's invocation of spousal privilege is not a failure to cooperate, termination overturned</b><br /><br /> Arbitrator Russel Bergstedt sustained a grievance filed on behalf of a Tulsa police officer dismissed for failure to answer a question during an Internal Affairs investigation. <a href="https://drive.google.com/file/d/1ZPFANqvW4irVz6pP7fYz0AtuTDffI8eD/view?usp=sharing"><span style="color: blue;">City of Tulsa and FOP Lodge 93</span></a>. The officer's husband (also a Tulsa police officer) had been alleged to have shot and killed their daughter's boyfriend. While grievant was initially charged with being an accessory after the fact, that charge was dropped. Six months after the shooting, at the Chief's direction, an Internal Affairs investigation was initiated concerning grievant's earlier arrest on the accessory charge. During the IA interview, grievant declined, on the advice of counsel, to answer one of the questions on the grounds of spousal privilege. The interview was cut short and grievant was subsequently advised that, while the investigation found no basis for a conclusion that she had been an accessory after the fact, her employment was being terminated because of her failure to cooperate in the investigation.<br /><br /> While the parties disagreed on the applicability of the spousal privilege to the circumstances here, the Arbitrator sustained the grievance, concluding:<br /><br /> I<i> find the violation of Rule 6 is without merit given the protections afforded [grievant] by and through her Garrity rights. While being afforded protection under those rights, “...neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. I further wish to advise you that if you refuse to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to department charges which could result in discipline or dismissal from the Tulsa Police Department.” [Grievant] never refused to answer question 12 from the IA interview, she responded, “On the advice of counsel.” [Grievant] was entitled to, “...all the rights and privileges guaranteed by the laws of the State of Oklahoma and the Constitution of the United States of America.</i> <br /><br /><b> Arbitrator rejects termination of police officer for Facebook posts</b><br /><br /> Arbitrator Thomas Gibbons overturned the termination of a Peoria police officer dismissed because of what the Department described as "racialized" Facebook postings. <a href="https://drive.google.com/file/d/1EibhAa6SZrV6Dgcd3ep69ojQq1Rw-hON/view?usp=sharingPeoria%20Police%20Benevolent%20Association%20and%20City%20of%20Peoria"><span style="color: blue;">Peoria Police Benevolent Association and</span> <span style="color: blue;">City of Peoria</span></a>. In response to articles about the closing of supermarkets in the South Peoria neighborhood, the officer made comments about numerous thefts at the stores. The officer's page also included photos of him in uniform, and one wearing a t-shirt with the legend "Baby Daddy Removal Team." The Department's termination decision was based on its belief that by his postings grievant had engaged in "conduct unbecoming." Rejecting the City's position, Arbitrator Gibbons found no evidence that the posts were racially motivated, and concluded:<br /><br /><i> Just cause mandates that the City act on the Grievant’s actual words, not the public’s reaction to what they infer what Grievant meant by his words or what even the City infers to be Grievant’s meaning and intent of his words. The Grievant explicitly said in his posting that he was not talking about race but rather he was addressing crime as the community’s problem. It is Grievant’s only reference to race in his postings but the one reference ignored by the City and the community. And as stated before, the lack of a social media policy at the time of this discipline, thus denying Grievant with fair notice that his postings could lead to discipline, is also concerning. Ultimately, just cause requires more to terminate a 17-year police veteran with a relatively unblemished record with no history of racist or discriminatory conduct directed toward Peoria’s minority citizens. [footnote omitted].</i><br /><br />The Arbitrator found it unnecessary to resolve the Union's claim that grievant's postings were protected by the First Amendment. <br /><br /> The issue of racially charged messages in social media is also addressed in <a href="https://arbitrationmatters.blogspot.com/2019/10/several-recent-cases-address-use-of.html"><span style="color: blue;">Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media</span></a> and<span style="color: blue;"> </span><a href="https://arbitrationmatters.blogspot.com/2019/12/end-of-year-quick-hits-public-safety.html"><span style="color: blue;">End of year Quick Hits - Public Safety, Public policy, Arbitrability and Injunctions pending arbitration</span></a><br /><br /><b>Termination of officer for antisemitic comments upheld</b><br />Arbitrator John L. Woods <a href="https://drive.google.com/file/d/1GTm7k60oGYp8E5FhfmIPt8Zo8k-Kb_kx/view?usp=sharing"><span style="color: blue;">upheld</span></a> the termination of a Miami, FL police Sergeant for what were alleged to be his antisemitic comments in a self recorded video made while cleaning out the Union's offices. (The video can be viewed <a href="https://www.washingtonpost.com/nation/2018/12/01/taking-out-trash-dawg-officer-suspended-after-desecrating-jewish-texts-chief-says/"><span style="color: blue;">here.</span></a>) <a href="https://drive.google.com/file/d/1GTm7k60oGYp8E5FhfmIPt8Zo8k-Kb_kx/view?usp=sharing"><span style="color: blue;">Roberto Destephen and City of Miami</span></a>. Arbitrator Woods rejected grievant's argument that the Department was without jurisdiction to investigate the incident because it occurred off duty and while grievant was acting "in the capacity of a union official." The Arbitrator found that grievant's conduct "garnered international attention based on the video's content which displayed offensive behavior towards the Jewish community," and concluded that grievant's conduct resulted in "irreparable harm concerning his status in the community within any capacity with Miami Police Department" and "he cannot be rehabilitated."<br /><b><br /></b><b>Termination of Fire Lieutenant in charge reduced to</b></span><div>
<span style="font-size: large;"><b> suspension, Department failed to follow progressive discipline </b><br /><br />Grievant was the Lieutenant in charge of the scene to which rescue personnel had been dispatched. A subsequent investigation determined that the team had not properly handled the situation and had breached a number of policies in the process. While all of the employees who were at the scene were disciplined, grievant was the only one whose employment was terminated. Arbitrator Stephen Owens reduced the termination to a suspension, noting grievant's prior good record, and the absence of progressive discipline.<span style="color: blue;"> </span><a href="https://drive.google.com/file/d/1hpPdicTdRsayrWZ3H8e3E_8q3psTf6Gw/view?usp=sharing"><span style="color: blue;">Hillsborough County and Hillsborough County Firefighters, IAFF, Local 2294</span></a>. While finding that the County had proved by clear and convincing evidence that it had just cause to discipline grievant "for his failure to effectively manage and control the situation," he also found that the other three medics on the scene had contributed to the errors made. Those other individuals were disciplined short of termination. Arbitrator Owens concluded that "[a]n essential element of just cause is the principle of progressive discipline." The County's failure to apply progressive discipline in this case, while affording it to the other individuals on the scene, undermined the case for termination. Accordingly, Arbitrator Owens reduced the termination to a suspension and ordered grievant's reinstatement.</span><div>
<span style="font-size: large;"><br /><b>Arbitrator finds just cause is the appropriate standard despite the absence of an explicit just cause provision in the cba. </b></span><div>
<span style="font-size: large;"><b><br /></b> In <a href="https://www.courtlistener.com/docket/16651203/cascades-containerboard-packaging-lancaster-division-v-graphic/"><span style="color: blue;">Cascades Containerboard Packaging v. Graphics Communications Conference of International</span> <span style="color: blue;">Brotherhood of Teamsters, Local No. 503</span></a><span style="color: blue;">,</span> the Company seeks to set aside an <a href="https://drive.google.com/file/d/1h4wLj2mNl-1r4oI7wGZ3d7qoPD7wLtna/view?usp=sharing"><span style="color: blue;">award</span></a> of Arbitrator Eric Lawson, arguing that he improperly aded a just cause for discharge provision to a cba where no such provision was explicitly included. The grievance in issue involved the termination of an employee for alleged FMLA abuse. Arbitrator Lawson's award acknowledged the absence of an explicit reference to just cause in the discipline article of the cba. He concluded, nevertheless, that other provisions of the cba, including seniority, a reference to a probationary period for new employees, and language in the cba's preface stating the intent of the parties for "the promotion of harmonious relations ... [and] the establishment of an equitable and peaceful procedure for the resolution of disputes ..." were counter to the Company's claim that it could terminate employees "at will." He observed:<br /><br /><i> To evaluate these competing positions it is necessary to adopt a standard by which the Grievant's discharge can be measured since if it is found that the discharge was without merit that would sharpen the focus as to what the reasons for the discharge actually were. Such a standard is just cause, a measure which both parties agree appears in many union/management contracts, perhaps a majority .In addition, the review of "specific provisions" in JE I set forth above discloses the need for a standard to reconcile these provisions and reconciliation is needed to meet the purpose described in the preamble, i.e., "harmonious relations" and an "equitable and peaceful procedure for the resolution of disputes". In addition, the absence from Article 6 of a written standard by which a "disciplinary action" can be grieved does not automatically give rise to the imposition of the unrecorded at will doctrine advanced by the Company</i>. <br /><br /> The Company asserts that the Arbitrator exceeded his authority by going beyond the scope of the cba and "exhibited a manifest disregard of the law by inferring a just cause standard that does not exist in Article 6 of the CBA."<br /><br /> Similar issues are raised also in <a href="https://www.courtlistener.com/docket/16540669/prairie-farms-dairy-inc-v-chauffeurs-teamsters-warehousemen-and/"><span style="color: blue;">Prairie Farms Dairy, Inc. v. Teamsters Local 525</span></a> (alleging Arbitrator exceeded his authority when he reinstated an employee despite finding that the Company had "serious just cause" as set forth in the cba) and<span style="color: blue;"> </span><a href="https://www.courtlistener.com/docket/16735565/securiguard-inc-v-united-government-security-officers-of-america-local/"><span style="color: blue;">Securiguard, Inc. v. Uniformed Government Security Officers of America, Local 276 </span></a>(asserting that the Arbitrator's reinstatement of grievant after finding that he had committed a Level Two offense despite language in the cba that commission of a Level Two offense "shall subject an employee to immediate discharge.")<br /></span></div>
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John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-11454977189278771682020-01-15T20:45:00.000-05:002020-01-19T11:47:13.347-05:00Disparate treatment not cured by subsequent modification of earlier discipline, and modification barred by principle of double jeopardy <span style="font-size: large;">Two recent arbitration awards involving Cincinnati police officers highlight the issues of double jeopardy and equality of treatment, and the impact of those principles on a Department's efforts to discipline officers.</span><br />
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<span style="font-size: large;">On September 26, 2018 Officer Donte Hill was recorded on a body cam using a racial slur while dealing with two individuals engaged in a physical altercation. Because the incident included the use of force (a taser) the body cam footage was reviewed by the Sergeant who determined that the language used was inappropriate. He advised the Captain who agreed and recommended an official reprimand. That recommendation was set forth in a memo, which included a link to the body cam video, ultimately reviewed by the Chief, who approved the recommendation. The reprimand was issued to Officer Donte on October 29, 2018.</span><br />
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<span style="font-size: large;">On December 23, 2018, Officer Dennis Barnette responded to a parking complaint. While at the scene he became involved in dealing with two individuals engaged in a physical altercation. The interaction, recorded on a body cam, included Officer Barnette's use of the same racial slur used by Officer Hill. The incident was reviewed by Officer Barnette's supervisor, and the video became the subject of local media attention. The matter was investigated by Internal Affairs. IA informed the Chief of the prior incident involving Officer Hill. The Chief subsequently testified that he had not recalled the prior incident but, after being informed of the video of the incident involving Officer Hill, he instructed IA to conduct a "full investigation" of the Officer Hill incident.</span><br />
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<span style="font-size: large;"> On June 10, 2019 Officer Barnette was issued a 56 hour suspension. On June 12, Officer Hill was issued a similar 56 hour suspension. Both suspensions were grieved and submitted to arbitration for resolution.</span><br />
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<span style="font-size: large;">On December 5, 2019, Arbitrator Daniel Zeiser issued an <a href="https://drive.google.com/file/d/1NlHkzcODaaX_-VsA1ZSfIwV66BYm7T9z/view?usp=sharing"><span style="color: blue;">award</span></a> overturning the suspension of Officer Hill. Arbitrator Zeiser found the suspension of Officer Hill a "classic double jeopardy situation." He noted:</span><br />
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<i><span style="font-size: large;">The City argues that new information was learned during Sgt. Fox’s investigation, including that the individuals involved in the incident were offended by the Grievant’s remark. This argument misses the mark. Nothing new about the Grievant’s misconduct was discovered — the body cameras recorded his comments and these comments were known in October when the written reprimand was issued. Even if new information had been discovered, that does not necessarily mean the City could have disciplined the Grievant based on that information. It is only when an employer’s incomplete knowledge of the facts at the time of the initial discipline was not the employer’s fault that double jeopardy might not occur. For example, if information is intentionally kept from an employer, it may be able to impose additional discipline upon discovering it without causing a double jeopardy situation. That did not happen here. The Grievant’s comments were included in Sgt. Putnick’s memo, along with a link to the body camera footage. The Chief admitted that he simply did not read the memo carefully enough and did not look at the footage. Thus, the City had all the information as to the Grievant’s misconduct in October and acted on it by issuing the written reprimand. It cannot go back and issue additional discipline for the same misconduct. Simply put, Chief Isaac erred in not reading the memo closely enough and conducting a full investigation. That his error was later brought to his attention does not justify trying to correct it by disciplining the Grievant again. Rather, the City must live with the error. Suspending the Grievant in April for the same conduct upon which his reprimand was based was double jeopardy and invalidates the suspension. </span></i><br />
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<span style="font-size: large;">On December 9, 2019, Arbitrator David Stanton issued an <a href="https://drive.google.com/file/d/1V92IIlhy6QVXE_JSEAO0XtaBelqmwCjK/view?usp=sharing"><span style="color: blue;">award</span></a> sustaining the grievance filed on behalf of Officer Barnette. While not minimizing the impact of the grievant's use of the racial slur, he noted the reprimand issued to Officer Hill several months earlier. Finding the discipline of the two officers inconsistent, he overturned the suspension:</span></div>
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<i><span style="font-size: large;">Based on the time-honored, Labor-Management principle of Just Cause, as recognized in the CBA, the imposition of Disciplinary Action must be consistent and evenhandedly administered like Disciplinary Action for like infractions. Here, an African American Police Officer, who made the same utterance two (2) times within a 36-month period - the second of which occurred just three (3) months prior to the incident at issue herein - at the time, received a Written Warning. Whereas, the Grievant in this matter, of Caucasian decent, uttered the same racially insensitive, derogatory slur for which he received a 56-hour Suspension and suspension of Police powers preventing him from pursuing extra duty details and other compensated opportunities. Clearly, the discipline imposed was inconsistent and not applied to the two (2) violators - Employees of the Police Department - evenhandedly. Without question, the video footage of the Body Worn Camera, satisfactorily substantiates the Grievant did indeed engage in the misconduct for which Disciplinary Action is appropriate; however, based on that previously issued to other Officers who have violated this rule , especially Officer Donte Hill who uttered the same term two (2) times in a 36-month period, the 56-hour Suspension and suspension of Police powers, is inconsistent with that Disciplinary Action established for violation of this Rule or such Rules, Policies and/or Regulations addressing and prohibiting such utterances. </span></i><br />
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<span style="font-size: large;">Arbitrator Stanton acknowledged the subsequent suspension imposed in Officer Hill but concluded that this "after the fact" discipline failed to support the suspension imposed on Officer Barnette:</span></div>
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<i><span style="font-size: large;">This matter must be gauged and analyzed based on that conduct which occurred at the time Disciplinary Action was issued and not that taken after the fact when Officer Hill's Disciplinary Action was subsequently increased to reflect the same type of Disciplinary Action imposed against the Grievant. While that matter is not properly before this Arbitrator, the issuance of the Written Warning for the utterance of the same racial slur indeed must, and does, serve as compelling guidance with respect to the manner in which Disciplinary Action for this particular violation was established and effectuated; as was the case for other Officers who have violated this Standard when similar derogatory and/or offensive comments were uttered. Disciplinary Action for this violation, regarding this Employee was inconsistently determined and not applied evenhandedly for the same misconduct as other Employees found to have violated this Standard. As previously indicated, work rules, policies and/or procedures are drafted and implemented as Employee-neutral guidance for day-to-day workplace conduct and must be applied on a consistent basis to all Employees as Members/Employees of the Division of Police for the City of Cincinnati. </span></i>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-36634004969157388892019-12-15T10:39:00.003-05:002021-02-18T10:16:23.776-05:00End of year Quick Hits - Public Safety, Public policy, Arbitrability and Injunctions pending arbitration<b><span style="font-size: large;">Public Safety - Sex on Duty, Facebook, Sexual Harassment, Intoxication and Domestic violence</span></b><br />
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<span style="font-size: large;">Arbitrator Jerry Fullmer overturned the termination of a Columbus, Ohio police officer who had been dismissed for allegedly having sex with prostitutes in his police vehicle while on duty. <a href="https://drive.google.com/file/d/1miBXuy0cKGm5Uxfy7TVGRcTI7dQ1jasH/view?usp=sharing"><span style="color: blue;">City of</span> <span style="color: blue;">Columbus and Fraternal Order of Police Capital City Lodge No. 9</span></a><span style="color: blue;">. </span>Arbitrator Fullmer found that the failure to call the three alleged prostitutes as witnesses undermined the case for just cause. He noted that there was no evidence that the Department made any effort to compel their testimony. He did uphold two separate charges and ordered grievant's reinstatement without back pay.</span><br />
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<span style="font-size: large;">An Akron, OH police detective's Facebook postings warranted discipline, but the Department's case for termination relied improperly on events that had timed out under the cba.<a href="https://drive.google.com/file/d/1Vl2EAV3A0Q2QXwZKXDq1hNHbXX6xIHmj/view?usp=sharing"> <span style="color: blue;">City of Akron and Fraternal Order of Police, Akron Lodge No. 7.</span></a><span style="color: blue;"> </span>Arbitrator Jeffrey Belkin overturned the termination based, according to the City, on the "totality" of grievant's record. Because a number of the occurrences included in this "totality" could not be used for discipline, the Arbitrator focused on Facebook posts that fell within the period for which discipline could be considered. One, which the Arbitrator found clearly referred to persons attempting to cross the border with Mexico, said "just a thought....shoot 'em all." Arbitrator Belkin found this post "represents an incitement to violence against an ethnic minority." A second contained the question "How is it that no-one has offed that dipshit asshat Farrakhan?" that the Arbitrator found "even more deplorable." Arbitrator's Belkin concluded that this post violated not only the Department's Social Media Policy but "fell squarely" within the definition of "Conduct unbecoming an officer." He determined that the appropriate discipline for these offense was a total of a sixty day suspension. The Arbitrator rejected grievant's claim that his comments were protected by the First Amendment. Issues arising from an employees comments on social media are also discussed in<a href="https://arbitrationmatters.blogspot.com/2019/10/several-recent-cases-address-use-of.html"> <span style="color: blue;">Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media</span></a></span><br />
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<span style="font-size: large;">In <a href="https://drive.google.com/file/d/1eql8bm1LIy8ZJ7UOT6zCEKc7icBXl_Ko/view?usp=sharing"><span style="color: blue;">City of Omaha and</span> <span style="color: blue;">Professional Firefighters Association of Omaha, Local 385</span></a> Arbitrator Peggy McNeive largely sustained a grievance filed on behalf of an Omaha firefighter who was accused of using a racial slur and assaulting a woman while off duty in a bar. The Arbitrator found the City's investigation of the misconduct inadequate, determined that it was the City rather than grievant who brought the issue to public attention, and that the Chief failed to consider grievant's prior history of service, prior discipline of employees in similar circumstances, and discipline short of termination. She did uphold a 5 shift suspension for grievant ignoring instructions not to contact the Fire Captain. The City has sought to vacate the award. <a href="https://www.omaha.com/news/crime/city-stothert-appeal-ruling-reinstating-fire-union-president-want-it/article_5ff70ec4-f3c1-5db8-8bce-f57b536d028c.html#2"><span style="color: blue;">City, Stothert appeal ruling reinstating fire union president, want it vacated</span></a></span><br />
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<span style="font-size: large;">Arbitrator Jane Desimone upheld the suspension and six month probation imposed on a North Franklin PA Township Police Sergeant for his failure to act on a report of sexual harassment made to him by an officer under his supervision. <a href="https://drive.google.com/file/d/1BVl5l0I8fHTspdxUERuNzxrjuPOibu2r/view?usp=sharing"><span style="color: blue;">North Franklin Township and United Teamsters Local 205</span></a></span><br />
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<span style="font-size: large;">A firefighter who showed up intoxicated at a training class after he erroneously thought the course would be canceled because of bad weather was properly terminated according to Arbitrator Robert O'Brien. <a href="https://drive.google.com/file/d/1_x0bABvPpdAtAheZwobjs-62EUaR8VES/view?usp=sharing"><span style="color: blue;"> Town of Bourne, Massachusetts and International Association of Fire Fighters, Local 1717</span></a></span><br />
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<span style="font-size: large;">A San Antonio police officer had his termination upheld by Arbitrator Paul Chapdelaine.<span style="color: blue;"> </span><a href="https://drive.google.com/file/d/1I6bLJdDSQYtgIpDK_I2BI51vFSeTjuA6/view?usp=sharing"><span style="color: blue;">Police Officer Jason R. Ayers v.</span> <span style="color: blue;">The City of San Antonio, Texas</span></a>. The officer had been accused of striking an individual in an apparent instance of domestic violence, causing severe bodily injury, and drinking to the point of being unfit for duty.</span><br />
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<span style="font-size: large;"><b> Claims to vacate awards as i</b><b>n excess of authority/Contrary to public policy</b></span><br />
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In <a href="https://www.courtlistener.com/docket/16511264/veterans-transportation-services-v-teamsters-local-union-no-25/" style="font-family: oswald, sans-serif; font-style: italic; word-spacing: 0.25em;"><span style="color: blue;">Veteran's Transportation Services, v. Teamsters Local Union No. 25</span></a><span face=""oswald" , sans-serif" style="color: #666666; font-style: italic; word-spacing: 0.25em;">, </span>the District Court in Massachusetts rejected the Employer's request to vacate an arbitrator's award as either in excess of his authority or as contrary to public policy. The Court concluded that the arbitrator was interpreting the cba, and that the employer failed to show that the arbitrator disregarded the language of the cba in doing so. Similarly, the Court found that reinstatement of the employee, a sedan driver for the disabled who had been terminated for reckless driving, was not contrary to public policy.</span><br />
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<span style="font-size: large;">While disagreeing with the award on the merits, the District court in Nebraska confirmed an <a href="https://drive.google.com/file/d/18FdC4XdgH4QlkTeQDawpUXAmf7ObXziQ/view?usp=sharing"><span style="color: blue;">awar</span><span style="color: blue;">d</span></a> of Arbitrator Cary Morgen ordering the reinstatement of an engineer who was alleged to have defecated on a train-car knuckle. <a href="https://www.leagle.com/decision/infdco20191122c82"><span style="color: blue;">Union Pacific Railroad Company v. International Association of Sheet Metal,</span> <span style="color: blue;">Air, Rail and Transportation Workers - Transportation Division</span></a> The Court rejected UP's <a href="https://www.courtlistener.com/docket/14538606/union-pacific-railroad-company-v-international-association-of-sheet-metal/"><span style="color: blue;">claim</span></a> that the award added requirements that did not exist in its agreement, concluding that the award simply determined that, in this instance, termination was too harsh. <i>Update: The Eighth Circuit rejected the carriers claim that the award was in exess of the arbitrator's authority. </i></span><span style="font-size: large;"><a href="https://www.leagle.com/decision/infco20210217125">https://www.leagle.com/decision/infco20210217125</a></span><div><span style="font-size: large;"><br /></span><div><div>
<b><span style="font-size: large;">Injunctions Pending</span></b><br />
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<span style="font-size: large;">In <a href="https://www.leagle.com/decision/infdco20191202b72"><span style="color: blue;">Newspaper, Newsprint, Magazine and Film Delivery Drivers, Helpers, and Handlers, International</span> <span style="color: blue;">Brotherhood of Teamsters, Local Union No. 211 v. PG Publishing Co., Inc d/b/a Pittsburgh Post Gazette</span></a> the District Court for the WD of Pennsylvania granted the <a href="https://www.courtlistener.com/docket/16460981/newspaper-newsprint-magazine-and-film-delivery-drivers-helpers-and/"><span style="color: blue;">request</span></a> of the Union for an injunction maintain the status quo pending resolution of its grievance concerning the paper's alleged violation of an "implied in fact" contract. The Union claims that the Company announced plans that will breach, inter alia, its obligation to obligation to maintain health insurance benefits for employees.</span><br />
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<span style="font-size: large;">The District Court for the District of Columbia denied a <span style="color: purple;"><a href="https://www.courtlistener.com/docket/16128376/national-association-of-letter-carriers-v-united-states-postal-service/">request</a> </span>by the NALC for a status quo injunction pending resolution of its grievance claiming that a Postal Service initiative was in violation of its cba. <a href="https://www.leagle.com/decision/infdco20191106g89"><span style="color: blue;">National Association of Letter Carriers, AFL-CIO v</span>. <span style="color: blue;">United States Postal Service</span></a>. The Court concluded that an arbitration success by the Union would not be an "empty victory" and that an injunction was unnecessary to preserve the arbitral process.</span><br />
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<b><span style="font-size: large;">Arbitrability</span></b><br />
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<span style="font-size: large;">In a case the press has dubbed as involving "football flu," the New Jersey Appellate Division upheld a <a href="https://www.perc.state.nj.us/percdecisions.nsf/IssuedDecisions/85257575007C21048525833F006E64D5/$File/PERC%202019%2027.pdf?OpenElement"><span style="color: blue;">decision</span></a> of the State's Public Employment Relations Commission. PERC had concluded that a dispute over whether an employee should be required to submit a doctor's note for an absence on the day of the parade celebrating the Philadelphia Eagles Super Bowl victory was subject to arbitration. <a href="https://www.leagle.com/decision/innjco20191127646"><span style="color: blue;">Matter of City of Burlington Board of Education v. City of Burlington Education Association</span></a> The Board of Education had challenged the arbitrability of the dispute, claiming that it was allowed by statute to require a physician's certificate for sick leave. The Court held that the "application" of the sick leave policy may be challenged through the contractual grievance procedures to arbitration.</span><br />
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<span style="font-size: large;">The District Court in North Carolina addressed a dispute over the arbitrability of a claim that an employee had breached the nondisclosure provisions of a grievance settlement. <a href="https://www.leagle.com/decision/infdco20191120d47"><span style="color: blue;">International Association of Sheet Metal, Air, Rail and Transportation Workers, v. Transit Management of Charlotte, Inc.</span></a><span style="color: blue;"> </span>The settlement provided: "Should [grievant] violate the confidentiality of this agreement the agreement is voided and he is subject to termination without grievance rights as set forth in the Collective Bargaining Agreement." After the Company terminated grievant's employment for alleged violation of the confidentiality provisions of the agreement, the Union sought to arbitrate the issue of whether a breach had taken place. The Court rejected the Company's claim that Union had waived the right to grieve or arbitrate the issue, concluding that because the settlement agreement was ambiguous and because the cba had a broad arbitration provision the dispute should be resolved by an arbitrator.</span><br />
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</div></div></div>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-74059675612184116942019-12-08T11:07:00.000-05:002020-01-19T14:42:38.051-05:00Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness<span style="font-size: large;">Arbitrator Rolland Toenges upheld the termination of a Cloquet, MN police officer fired after the County Attorney notified the City that she would not use him as a witness. Arbitrator Toenges' award can be found <a href="https://drive.google.com/file/d/1LOkJly8vsLCwC8gQbBERl1DujFFyuCfh/view?usp=sharing"><span style="color: blue;">here</span></a>.</span><br />
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<span style="font-size: large;">Grievant was employed as a police officer for the City of Cloquet, MN since June 1997. On February 25, 2019, the Carlton County Attorney notified the City that grievant was a "Brady Cop." This designation was premised on three incidents of alleged misconduct reflecting dishonesty and credibility issues. These incidents took place on December 22, 2004, January 3, 2005 and July 24, 2017.</span><br />
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<span style="font-size: large;">On June 4, 2019, the City terminated grievant's employment "based on his inability to perform essential duties of his position." The termination was grieved and submitted to Arbitrator Rolland Toenges for resolution.</span><br />
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<span style="font-size: large;">The city argued that because the County Attorney determined that grievant was an unacceptable witness to testify in court proceedings, and that she would not prosecute cases where the grievant would be a witness, it would put public safety at risk to continue to employ him. It argued further "[w]hether the County Attorney's determination is righter wrong is not a matter within the Police Department's authority. The Police Department must accept that Grievant is not qualified to perform the essential duties of a Police Officer. ... The only remedy available to the Employer is termination of the Grievant."</span><br />
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<span style="font-size: large;">The Union questioned the County Attorney's decision to bar grievant from testifying, asserting that it was premised on her personal animosity toward grievant, and noting that a judge or jury could determine whether grievant's testimony was credible. It also claimed that termination of grievant for the three earlier incidents, for which he had already been disciplined, constituted double jeopardy. Finally it argued that "Brady designation does not require discharge."</span><br />
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<span style="font-size: large;">Arbitrator Toenges denied the grievance, concluding that "the City Attorney's position to not prosecute in situations where the Grievant would be a witness, renders him unable to perform an essential part of police officer duties." He rejected the Union's double jeopardy claim, noting that he was not terminated because of the prior misconduct "but due to the County Attorney's position not prosecute cases where the Grievant would be a witness." He concluded that the small Department had no other position for which it could use grievant.</span><br />
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<span style="font-size: large;">The Arbitrator's decision is summarized in his Findings:</span><br />
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<i><span style="font-size: large;">FINDINGS <br /><br />1. Court testimony is an essential duty of a police officer. <br /><br />2. Essentially all police arrests or investigations either will, or will likely, involve court testimony. <br /><br />3. Based on the Grievant’s disciplinary record involving untruthfulness, the County Attorney will not prosecute cases where the Grievant’s testimony would be involved. <br /><br />4. The effect of the County Attorney’s decision renders the Grievant unable to perform an essential duty of a police officer position. <br /><br />4 The UNION in its Post Hearing Brief acknowledges there is “No mechanism to challenge Brady designation.” <br /><br />5. The Police Department does not have the resources necessary to employ an officer who cannot perform essential duties. <br /><br />6. The Police Department is without authority to change the County Attorneys position. <br /><br />7. The County Attorney, as a member of the Citizens Advisory Board, has direct knowledge of the Grievant’s misconduct and disciplinary history. <br /><br />8. It is axiomatic that the County Attorney having direct knowledge of the Grievant’s misconduct and discipline history is qualified to assess the effect application of the Brady Law may have on the Grievant’s creditability as a witness. <br /><br />9. The County Attorney has confirmed that the decision to not prosecute cases where the Grievant would be a witness is final and not subject to reconsideration. <br /><br />10. The County Attorney’s decision is not subject to the Arbitrator’s review. </span></i><br />
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Brady issues are also discussed in the following posts:</span><br />
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<a href="https://arbitrationmatters.blogspot.com/2018/10/police-dishonesty-public-policy-and.html"><span style="color: blue; font-size: large;">Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report </span></a><br />
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<a href="https://arbitrationmatters.blogspot.com/2018/02/termination-of-police-officer-for.html"><span style="font-size: large;"><span style="color: blue;">Termination of police officer for dishonesty overturned,</span> <span style="color: blue;">disparate treatment renders discipline excessive</span></span></a><br />
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<a href="https://arbitrationmatters.blogspot.com/2017/10/termination-of-police-officer-for-off.html"><span style="color: blue; font-size: large;">Termination of police officer for off duty DWI upheld</span></a><br />
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<span style="font-size: large;"><a href="https://arbitrationmatters.blogspot.com/2017/06/law-enforcement-untruthfulness.html"><span style="color: blue;">Law Enforcement: Untruthfulness,</span> <span style="color: blue;">reinstatement and Brady issues</span></a><span style="color: blue;"> </span></span><br />
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<a href="https://arbitrationmatters.blogspot.com/2017/01/police-officers-bradygiglio-dishonesty.html"><span style="color: blue; font-size: large;">Police officers, Brady/Giglio, dishonesty, exoneration and just cause</span></a><br />
<span style="font-size: large;"><br /></span><span style="font-size: large;"><i>Update: Grievant has filed a complaint in federal court challenging the County's Brady policy and its application to him. Available <a href="https://www.courtlistener.com/docket/16718717/holman-v-county-of-carlton-minnesota/"><span style="color: blue;">here</span>.</a></i></span>
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John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com1tag:blogger.com,1999:blog-9042249538440655396.post-52470767553401409552019-11-24T10:33:00.001-05:002020-10-04T12:30:36.110-04:00Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement.<br />
<span style="font-size: large;">Dana Incorporated has filed a <a href="https://www.courtlistener.com/docket/16478035/dana-incorporated-v-the-international-union-united-automobile-aerospace/"><span style="color: blue;">Complaint</span></a> seeking to set aside an <a href="https://drive.google.com/file/d/1loOcfn5zy4PFOLvqEAtt58vVhA37RNuR/view?usp=sharing"><span style="color: blue;">award</span></a><span style="color: blue;"> </span>of Arbitrator Daniel Kininmonth. The Company alleges that the Arbitrator filed to apply a Last Chance Agreement that he found to be applicable and to have been violated, and in doing so acted in excess of his authority.<br /><br />Grievant had been placed on a Last Chance Agreement following a prior termination for attendance issues. The LCA included a provision stating “You are expected to adhere to the general plant safety and general rules of conduct as well as the attendance policy.” The LCA also contained language that :</span><br />
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<span style="font-size: large;"><br /><i> In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination. <br /><br />Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.</i><br class="Apple-interchange-newline" /><br />On May 21, 2018, toward the end of grievant's shift, a stamping press jammed. The Production Supervisor instructed grievant to clean up his work area while the machine was down. At the end of grievant’s shift, the production supervisor was told by a Group Leader that grievant had not cleaned his work area. They both inspected the area and confirmed that it had not been cleaned. They also noted that grievant had not fully completed the "hour by hour " board, used to allow employees on the next shift to be aware of what had taken place during the preceding shift.<br /><br />The Production Supervisor met with grievant the next day and told him he was issuing him two ‘write ups,’ consisting of two written warnings, the first addressing the failure to clean up his work area and the failure to fully complete the board, and the second concerning unexcused absences. <br /><br />On May 23, 2018 emails were sent to the Company’s Human Resources’s Manager describing the issues related to the write-ups. The HR Manager concluded that grievant had violated the LCA and she notified the Union that grievant’s employment would be terminated.<br /><br />That decision was grieved and submitted to Arbitrator Kininmonth. <br /><br />The Company maintained that grievant’s conduct was contrary to the LCA, and that the LCA defined “just cause” in these circumstances.<br /><br />The Union raised several claims, including a claim that language had been added to the LCA without its knowledge, that it should have been limited to attendance issues, that the Company had failed to properly investigate grievant’s conduct, and that he had been subjected to double jeopardy when he had first received written warnings for his conduct but was subsequently dismissed. Arbitrator Kininmonth rejected all of the Union’s claims except for that related to double jeopardy. <br /><br />The Arbitrator rejected the Company’s claim that he had no authority to consider the double jeopardy question:<br /><br /><i>The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.</i><br /><br />Arbitrator Kininmonth concluded that grievant was subjected to to "Double Jeopardy" when he was terminated after being disciplined by a written warning. He noted that Double Jeopardy is a "component" of industrial due process. While recognizing there are several views among arbitrators concerning how to remedy due process violations, Arbitrator Kininmonth aligned himself with those who believe "unless there is strict compliance with procedural requirements and due process the whole action will be vacated and nullified."<br /><br />In accord with that belief, he reversed the termination and ordered the grievant's reinstatement with back pay. </span><br />
<span style="font-size: large;"><br /></span><i><span style="font-size: large;"> Update: The Court confirmed the Award of Arbitrator Kininmonth <br /></span>
</i><span style="font-size: large;"><i>Issues related to Last Chance Agreements are also discussed in the following posts: <a href="https://arbitrationmatters.blogspot.com/2020/10/last-chance-agreement-double-jeopardy.html"><span style="color: #2b00fe;">Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement</span></a></i></span><br />
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<span style="-webkit-font-kerning: none;"><a href="https://arbitrationmatters.blogspot.com/2019/06/recent-decisions-last-chance-agreement.html"><span style="color: blue;">Recent Decisions - Last Chance Agreement, "substantive due process" and police use of force</span></a></span></div>
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<span style="-webkit-font-kerning: none;"><a href="https://arbitrationmatters.blogspot.com/2014/05/can-arbitrator-disregard-last-chance.html"><span style="color: blue;">Can an arbitrator disregard a last chance agreement?</span></a></span></div>
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<span style="-webkit-font-kerning: none;"><a href="https://arbitrationmatters.blogspot.com/2015/02/last-chance-agreement-doesnt-bar.html"><span style="color: blue;">Last chance agreement doesn't bar arbitration when union is not a party</span></a></span></div>
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John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-32043781798541826622019-11-17T11:58:00.001-05:002020-02-15T11:08:43.355-05:00Does employer provided alcohol mitigate an employee's intoxicated sexual harassment?<br />
<span style="font-size: large;">That was the issue presented to Arbitrator Robert E. Light in <a href="https://drive.google.com/file/d/1Ggcvb1x1_KAX7u0hmLgRucCsOu-G2WY4/view?usp=sharing"><span style="color: blue;">Aramark Uniform & Career Apparel and Teamsters Local Union No. 769.</span></a></span><br />
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<span style="font-size: large;">Grievant was employed by Aramark as a Route Sales Representative. In acknowledgement of his sales performance, he was invited to a Company recognition event consisting of a dinner and a limo to and from a Miami Heat basketball game. Alcohol was provided by the Company both at the dinner and in the limo.</span><br />
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<span style="font-size: large;">While in the limo on the return from the game, grievant groped, touched and made sexual comments to another employee participating in the event. That employee, and another individual who was in the limo, testified and described the conduct of grievant. Grievant also testified, but said he could not remember much of what happened since he was already drunk when he went to the game.</span><br />
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<span style="font-size: large;">The employee who was groped filed a complaint with the Company and, after an investigation, the Company terminated grievant's employment. That action was grieved and submitted to Arbitrator Light for resolution.</span><br />
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<span style="font-size: large;">While not condoning grievant's actions, the Union maintained that there were mitigating circumstances that called for discipline short of termination. It pointed to his approximately six years of employment with the Company, his clean work record, and his sales performance, including two years in which he was recognized as top sales person for the plant. It also noted that the alcohol grievant was drinking had been supplied by the Company.</span><br />
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<span style="font-size: large;">Arbitrator Light found at least some basis for the Union's argument, noting:</span><br />
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<span style="font-size: large;"><i>As was persuasively argued by Union counsel, the Company should have considered mitigation under these facts that would have led it to impose a lesser form of discipline. That is to say, as the facts reveal, the drinking that occurred in the limousine was due to the liquor being supplied by the Company. Does that fact in and of itself absolve the grievant from the conduct which he exhibited on the night in questions? The answer to that is no, however, it is a mitigating circumstance and must be taken into account by this arbitrator with respect to the penalty imposed upon the grievant. While it certainly does not absolve the grievant of the actions which he took, this arbitrator must take into account the aforementioned fact as well as the grievant's prior good record and the manner in which he testified at the arbitration hearing. </i><span id="docs-internal-guid-cdda37fb-7fff-e857-24fc-0d6e981b0bca"></span></span><br />
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Arbitrator Light sustained the grievance in part, finding no just cause for termination but ordering grievant's reinstatement without back pay.</span><br />
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<span style="font-size: large;">Aramark has sought to vacate the award (<a href="https://www.courtlistener.com/docket/16446144/aramark-uniform-career-apparel-inc-v-teamsters-local-769/"><span style="color: blue;">here</span></a>), asserting that it is both contrary to the cba (which provides that "The Company shall not discharge or suspend any employee without just cause, excepting that no warning need be given employee before discharge if the cause for such discharge is ... sexual harassment") and to the "State's explicit, well-defined, and dominant public policy against sexual harassment in the workplace, and the affirmative duty of employers to implement that policy."</span><br />
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<span style="font-size: large;">Another recently filed case also seeks to set aside an <a href="https://drive.google.com/file/d/1He-6RpX0l3y52nNzmnPOqefLmT7MNtuJ/view?usp=sharing"><span style="color: blue;">award</span></a> reinstating an employee who had been dismissed for sexual harassment. In<span style="color: blue;"> </span><span style="color: red;"><a href="https://www.courtlistener.com/docket/16433205/welch-foods-inc-v-general-teamsters-local-union-no-397/" style="color: red;"><span style="color: blue;">Welch Foods, Inc., A Cooperative d/b/a WELCH's v. General </span></a><span style="color: blue;"><a href="https://www.courtlistener.com/docket/16433205/welch-foods-inc-v-general-teamsters-local-union-no-397/"><span style="color: blue;">Teamsters, Local Union. 397</span></a>,</span></span> the Company seeks to vacate the <span style="color: red;"><a href="https://drive.google.com/file/d/1He-6RpX0l3y52nNzmnPOqefLmT7MNtuJ/view?usp=sharing"><span style="color: blue;">award</span></a></span><span style="color: blue;"> </span>of Arbitrator Michelle Miller Kotula, asserting that it is contrary to public policy. Grievant had been dismissed as a result of his alleged conduct during a discussion with another employee. The discussion became heated, and grievant was alleged to have used "abusive, sexually explicit and derogatory language." The other employee involved was also initially dismissed but the Company later changed that to a two week suspension. Arbitrator Miller-Kotula found that grievant had " said inappropriate comments and used foul language during the incident" but concluded that the other participant had initially caused the argument and had also used inappropriate language. The Arbitrator reduced the termination to the same two week suspension that had been imposed on the other employee. The Company's complaint alleges "The Award conflicts with and completely undermines the obligation of Welch's to prevent sexual harassment in the workplace and to apply sanctions against sexual harassment which creates a hostile or offensive work environment."</span><br />
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<span style="font-size: large;"><i>Update: The Aramark complaint has been dismissed with prejudice pursuant to the parties' settlement.</i></span>John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-3149332538842799362019-11-10T16:04:00.000-05:002019-11-10T16:04:51.027-05:00Arbitrator reverses termination for police officer's use of racial slur<span style="font-size: large;"><br /></span>
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Arbitrator Thomas Cipolla overturned the termination of a San Antonio police officer who had been captured on a body camera using a racial slur during an arrest. Arbitrator Cipolla's award can be found <a href="https://drive.google.com/file/d/1ZlaSdm0obMeR9MevLn9K2Q1qkme3CJmb/view?usp=sharing"><span style="color: blue;">here</span></a>. KSAT links to the video at <a href="https://www.ksat.com/news/2019/07/25/san-antonio-officer-who-repeatedly-used-n-word-while-arresting-black-man-asks-for-job-back/"><span style="color: blue;">San Antonio officer who repeatedly used N-word</span> <span style="color: blue;">while arresting black man asks for job back</span></a>. </span><br />
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<span style="font-size: large;">The facts of the incident were largely undisputed. The Chief described at the arbitration hearing why he made the decision that termination was appropriate:</span><br />
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<i>This particular incident puts -- would put not only [grievant], but the entire department at risk. How can you have an officer working in the community that is as diversified as here with African Americans as part of the population, after the public sees that he's out here calling people the N-word, the fucking N-word, to quote. It presents a liability to every officer out here who may hesitate to use force against an African American or person of color because of a charge of -- possible charge of bias or being racist or that this is a racist department. You have officers running around using the N-word, telling people they are being arrested because they're a fucking N-word. That is the most inappropriate language I have ever heard used during an arrest, especially to a minority.</i></span><br />
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<span style="font-size: large;">Arbitrator Cipolla found that the evidence established a violation of the Department's Rules. He concluded that grievant's conduct brought "reproach and discredit" on both the grievant and the Department and that discipline was appropriate. However, while noting the severity of the offense, the Arbitrator found termination too severe in this instance. He cautioned that his decision should not be interpreted as coming from some "church of the second chance," but determined that:</span><br />
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<i><span style="font-size: large;">At the end of the day, however, I find myself coming to the conclusion that the Appellant was off that day and said some awful things he should not have said and is now sorry for them. The Appellant was not himself that day and whatever set him off that day needs to be addressed. Perhaps the chaplain had some insight into the matter in that he believed the Appellant was pushed and goaded by citizen Robinson and said a lot of things he should not have said. As a longtime veteran in various police departments, this should not have happened to the Appellant. The Appellant should also know he will not be given another chance if he crosses this line again and should consider some anger management counseling and learn techniques to control himself. </span></i><br />
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<span style="font-size: large;">Arbitrator Cipolla converted the termination to a 10 month suspension and ordered grievant's reinstatement.</span><br />
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<span style="font-size: large;">Similar issues are discussed in <a href="https://arbitrationmatters.blogspot.com/2019/10/several-recent-cases-address-use-of.html"><span style="color: blue;">Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media</span></a></span><br />
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John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-556602282949556382019-11-03T10:52:00.000-05:002019-11-03T10:52:52.541-05:00Deferral to arbitration of charges raising issues under the "contract coverage" test announced in MV Transportation, Inc. 368 NLRB No. 66<span style="font-size: large;">In<span style="color: blue;"> </span><span style="color: blue;"><a href="https://drive.google.com/file/d/1KIajMf_H3t0dmDNkYBF6nq8JHAqyFFwH/view?usp=sharing"><span style="color: blue;">MV Transportation, Inc</span>.,</a></span> the NLRB decided that it would no longer apply the "clear and unmistakable waiver" test in resolving charges that an employer had made unilateral changes in matters addressed in a collective bargaining agreement. Instead, it would follow the "contract coverage" standard applied by a number of circuit courts. In a<span style="color: purple;"> </span><span style="color: blue;">press</span><span style="color: purple;"> </span><span style="color: blue;">release</span> announcing its decision, the Board summarized the distinction between the two tests.</span><br />
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<i><span style="font-size: large;">Under the “contract coverage” or “covered by the contract” standard, the Board will examine the plain language of the parties’ collective-bargaining agreement to determine whether the change made by the employer was within the compass or scope of contractual language granting the employer the right to act unilaterally. If it was, the Board will honor the plain terms of the parties’ agreement and the employer will not have violated the Act by making the change without bargaining. If the agreement does not cover the employer’s disputed action, the employer will have violated the Act unless it demonstrates that the union waived its right to bargain over the change or that it was privileged to act unilaterally for some other reason. <br />Under the now-abandoned “clear and unmistakable waiver” standard, the Board would find that an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically referred to the type of employer action at issue. </span></i><br />
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The General Counsel's Division of Operations Management has now issued guidance to the Regions concerning deferral of charges that raise issues potentially impacted by that decision. <span style="color: blue;"><a href="https://drive.google.com/file/d/1Evsw1_OPE9C15dyvWLdXzf33ceUVQUpk/view?usp=sharing"><span style="color: blue;">Memorandum OM 20-03.</span></a> </span>Per the Memo, the Regional Office should first determine whether there has been an arguable violation of the Act, i.e. by a showing of a "material, substantial and significant change in a mandatory subject of bargaining without notice and a meaningful opportunity to bargain." If the Region concludes that there is no such violation the charge should be dismissed.</span><br />
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<span style="font-size: large;">If there is an arguable violation, and the Union has filed a grievance over the same issue, the charge should be deferred under the <i>Dubo </i>procedures<i>. <a href="https://drive.google.com/file/d/1Uw-Xt9-QitF0yLk5koo7NJN8LChsdw2X/view?usp=sharing"><span style="color: blue;">Memorandum GC 19-03 Deferral under Dubo Manufacturing Company</span></a></i></span><br />
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<span style="font-size: large;">If the Union has not filed a grievance, but the employer has committed to waiving procedural defenses to the filing and arbitrating of a grievance the Region may also consider deferral.</span><br />
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<span style="font-size: large;">However, if both parties oppose deferral the Region should complete its investigation of the charge, including any defense that a proviso of the cba privileges the action, and the case should be submitted to the Division of Advice.</span><br />
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John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com0tag:blogger.com,1999:blog-9042249538440655396.post-3941720329243034342019-10-27T12:14:00.001-04:002019-10-27T12:14:39.827-04:00Recent Petitions to Vacate - Persona non grata, a dispute over back pay, and transfer of work to a non-unit employee<b><span style="font-size: large;">Teamsters Local 853 v. SFO Transporter, Inc. d/b/a Compass Transportation</span></b><br />
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The Teamsters Union is seeking to set aside an <a href="https://drive.google.com/file/d/1NDokeBSgO5cVYzhhhZDDuPrtQc_KuyZ6/view?usp=sharing"><span style="color: blue;">award</span></a> of Arbitrator David B. Hart. </span><br />
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<span style="font-size: large;"> Grievant had been employed as a shuttle bus driver, driving for clients and customers of Compass. </span><span style="font-size: large;">A client of Compass requested that grievant be removed from its account based on an anonymous complaints from passengers. Shortly thereafter, Compass terminated grievant's employment. </span><br />
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<span style="font-size: large;">The cba between Teamsters and Compass provides:</span><br />
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<i><span style="font-size: large;">Under direction from any client or customer, an employee may be removed from service of that client or customer if it is deemed the employee is not performing to the client or customer's satisfaction. The employee, however, may bid to work for another client or customer, unless the employee engaged in misconduct or actions warranting discharge from the Employer. If no positions are available with another client or customer, the will be deemed laid off.</span></i><br />
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The dispute over grievant's termination was submitted to Arbitrator Hart for resolution. Arbitrator Hart denied the grievance. In doing so he relied on the "persona non grata doctrine." Essentially this doctrine applies when an employee, assigned to the premises of a third party is prohibited by that third party from providing services to it. In certain circumstances an employer may be able to dismiss such an employee without proving just cause. Arbitrator Hart concluded:</span><br />
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<span style="font-size: large;"><i>... the Grievant became disqualified due to the fact that there were no bus driver positions available to him due to two </i></span><i><span style="font-size: large;">clients/customers demanding his immediate removal from their accounts</span></i><span style="font-size: large;">.</span><br />
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<span style="font-size: large;">He found further:</span><br />
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<i><span style="font-size: large;">The Company did not need meet the standard for termination of the Grievant's employment because of misconduct, even though his alleged and partially admitted behavior was a violation of the Driver Manifesto and multiple provisions of the parties' Agreement; rather, the Company properly terminated his employment due to his persona non grata disqualification.</span></i><br />
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<span style="font-size: large;"> In its <span style="color: red;"><a href="https://drive.google.com/file/d/1Va5c0eNuzkrj2rb05gNv41x5F4Qc4kyG/view?usp=sharing"><span style="color: blue;">Petition to</span><span style="color: red;"> </span><span style="color: blue;">Vacate</span></a></span><span style="color: blue;">,</span> the Union alleges that the Arbitrator improperly modified the cba and ignored its requirement that an employee removed from a customer account who is unsuccessful in finding a position with another client or customer "will be deemed laid off." It notes that the cba protects an employees seniority upon removal from an account by a customer and asserts:</span><br />
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<i><span style="font-size: large;">The Arbitrator's decision that the Employer could terminate the Grievant based solely on his "persona non grata" removal from an account and that just cause did not apply exceeded his authority and modified the parties CBA.</span></i><br />
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The Union seeks remand of the dispute to the Arbitrator for resolution in a manner "consistent with the Court's opinion."</span><br />
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<b><span style="font-size: large;">Indiana Michigan Power Company v. Local Union 1392 International Brotherhood of Electrical Workers</span></b><br />
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<b>International brotherhood of Electrical Workers, Local 1393 v. Indiana Michigan Power Co.</b></span><br />
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These two cases <span style="color: blue;">(</span><a href="https://www.courtlistener.com/docket/16169271/indiana-michigan-power-company-v-local-union-1392-international/"><span style="color: blue;">here</span></a> and <a href="https://www.courtlistener.com/docket/16281951/international-brotherhood-of-electrical-workers-local-1392-v-indiana/"><span style="color: blue;">here</span></a>) are competing efforts to vacate or confirm a back pay <a href="https://drive.google.com/file/d/11no75ye0MF44g5m9d7NUzl27KJfdM4Cv/view?usp=sharing"><span style="color: blue;">award</span></a> of Arbitrator Cynthia Stanley. Arbitrator Stanley had previously sustained a grievance, ordering the grievant's reinstatement with full back pay and benefits. The parties were unable to agree upon the amount of back pay owed. The Employer calculated the amount as "negative" $29,166.51. The Union calculated the amount owed as $244,850.83 plus 31,604.64 in retirement benefits.</span><br />
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<span style="font-size: large;">Arbitrator Stanley agreed in large part with the Union, finding the amount owed as $264,438.89.</span><br />
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<span style="font-size: large;">The employer seeks to vacate that award, It asserts that the award includes amounts predating the termination, includes overtime and double time in amounts in excess of what grievant had historically worked, and failed to deduct any amount for work grievant could have performed during the back pay period. The Union seeks to have the award confirmed and for an award of its' attorney fees.</span><br />
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<b><span style="font-size: large;">Lewis County Rural Electric Cooperative Association and International Brotherhood of Electrical Workers Local Union Number 2</span></b><br />
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The Company seeks to vacate an <a href="https://drive.google.com/file/d/1bMMw2SChE-PoyyKt1y_OLDWm26PknnsH/view?usp=sharing"><span style="color: blue;">award</span></a><span style="color: blue;"> </span>of Arbitrator Richard Van Kalker sustaining a grievance claiming that it had violated the cba by reassigning work that had been done by a bargaining unit employee to a non bargaining unit individual. </span><br />
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<span style="font-size: large;">Certain work relating to the Company's website had ben performed by grievant. That work was transferred to the Company's Manager of Member Services/Government Relations. The Company raised a number of points in its defense of the grievance, including the management rights clause and the lack of impact on the grievant who suffered no layoff or reduction in hours. In his award, Arbitrator Van Kalker recognized the breadth of the management rights clause, but concluded that it "does not nullify, modify, diminish, or alter Article IV [the recognition clause] of the CBA." He concluded:</span><br />
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<i><span style="font-size: large;">In the case before the Arbitrator, the Arbitrator finds that the administration of the Company's website is routinely and customarily performed by an employee of the bargaining unit, to wit, the Grievant has performed administration of the Company's website since its inception in 2002. The Grievant has the knowledge and skills available to perform such work. The Grievant has always performed the work in an excellent manner. The Arbitrator would be remiss of his duties to find that administration of the Company's website is not bargaining unit work. As such, it was a violation of the CBA for the Company to reassign the administration of the Company's website from a bargaining unit member to a non-bargaining unit member. </span></i><br />
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<span style="font-size: large;">The Company argues in its <a href="https://drive.google.com/file/d/1-pLl3Fm6QZz1zN4j5Z0caDkKBBXhqx8z/view?usp=sharing"><span style="color: blue;">Complaint</span></a><span style="color: blue;"> </span>that the award does not draw its essence from the lawful provisions of the cba, fails to follow the specific provisions of the contract and instead relies on "implied provisions." It notes specifically that the Arbitrator did not discuss the language of the cba authorizing the Company to contract out "any portion of its work; provided however, that it shall not do so if such would result in any of the employees of the Cooperative being laid off during the tern of the Agreement." </span></div>
John H Curleyhttp://www.blogger.com/profile/16928792299043047389noreply@blogger.com2