Sunday, November 19, 2017

Quick Hits - Termination for Stalking, NLRB v. Arbitrator, Two tier contracts, and authority to appeal to arbitration

Arbitrator upholds termination of Sheriff's Deputy

Arbitrator Jeffrey Jacobs has upheld the termination of a Sheriff's Deputy accused of, among other things, stalking a woman he met on the internet, improper storage of his weapon, and possession of "injectable illegal drugs." The award can be found  here. During an investigation of the stalking complaint grievant's house was searched and police discovered drugs in his gun safe. An unlocked firearm was found in a knapsack by the entry door. Grievant was ultimately charged with stalking and felony level possession of illegal drugs.   He went to trial on the stalking charge and was acquitted. He entered an Alford plea on the drug charge, essentially acknowledging that the state had sufficient evidence of his guilt but not admitting to it. His employment was terminated, and the termination was submitted to Arbitrator Jacobs for resolution. Arbitrator Jacobs rejected the Union's argument that the acquittal on the stalking charge effectively cleared grievant of this offense. The arbitrator noted that the evidence produced at the hearing was sufficient to establish grievant's conduct and that the acquittal did not "absolve the grievant from any and all responsibility to the employer for the grievant's conduct." Similarly the arbitrator found no basis to conclude that the Alford plea somehow absolved grievant of responsibility for the possession of the legal drugs. Finally he also concluded that grievant's explanation for the unsecured weapon "rang particularly hollow."  With regard to the stalking issue, the Arbitrator acknowledged that, standing alone, this incident might not support termination. However, he found grievant's continued unwillingness to acknowledge the impact of his actions, and his claim that he had a first amendment right to contact the women made significant discipline appropriate. He concluded further that the possession of illegal drugs represented a clear violation of policy warranting discipline. Arbitrator Jacobs also agreed with the position of the County that the negative media attention these off duty incidents generated made them a matter of legitimate concern. Finding termination appropriate notwithstanding the absence of any prior disciplinary history, Arbitrator Jacobs noted particularly grievant's apparent lack of remorse. Grievant never acknowledged the wisdom surrounding the need to secure weapons, arguing that he did not think he needed to follow it. Finding grievant's responses generally "unapologetic" Arbitrator Jacobs concluded that grievant had not demonstrated any acceptance of responsibility and that "progressive discipline was shown not to apply in this unique scenario."

NLRB's unit determination prevails over arbitrator's contrary award

The District Court in Chicago has granted the request of Columbia College Chicago to vacate an award of Arbitrator Robert Perkovich, finding it contrary to a decisions of the NLRB. Part-Time Faculty Association v. Columbia College Chicago The issue arose from a dispute over the bargaining unit placement of certain full time staff of the College who also taught on a part time basis. The full time staff at the College were represented by United Staff of Columbia College Chicago (the Staff union).  Part time faculty were represent by the Part-time Faculty Association (PFAC). For some time, the full time staff who also teach (FTST) were paid the wages set forth in the PFAC Agreement but were not treated as part of that bargaining unit. In February of 2015, the Staff Union filed a petition with the NLRB seeking a self determination election among the FTSTs. The College opposed this petition, claiming in part that these employees were already included in the PFAC unit notwithstanding an exclusion from that unit of "full-time staff." The PFAC opposed inclusion of the FTSTs into their unit.  The Regional Director (here) dismissed the petition, concluding that the FTSTs were already included in the PFAC unit. PFAC sought review of the Regional Director's decision and also pursued a grievance to arbitration, contending that following the Regional Director' decision the College improperly and unilaterally granted the FTSTs bargaining unit seniority for times preceding the decision (and during which the employees had not paid dues). Arbitrator Robert Perkovich issued an award  concluding, as a matter of contract interpretation, that the FTST were not part of the PFAC bargaining unit. Arbitrator Perkovich determined "because the parties did not mutually intend to include the FTST employees in the bargaining unit ... the Employer violated ... [the] Agreement when it treated those employees as if they were in the unit." The College sought to vacate the award, and PFAC sought to confirm it. The District Court granted the College's request and denied that of the Union. The Court found that, on matters of representation, the Board's ruling "even if incorrect or unpersuasive" prevailed over that of an arbitrator.

Interest Arbitration panel won't impose two-tier residency requirement

An interest arbitration  panel, chaired by Arbitrator Marvin Hill, refused the request of the City of Springfield, IL to include in the police officers' contract a residency requirement applicable to new hires. The panel, with one dissent, was reluctant to impose a residency requirement where one had not previously existed, and was particularly disinclined to impose one limited to new hires. It noted that two tier provisions tended to be disruptive and were "disfavored." The award can be found here.

Union, not grievant, has  authority to appeal to arbitration

The Appellate Division of New York's Supreme Court reversed a trial court's decision and noted that pursuant to the express provision of the applicable collective bargaining agreement only the Union could appeal a case to arbitration. Since the Union had not done so the grievants demand "had no legal effect." Matter of Widrick

Sunday, November 12, 2017

Labor Arbitration in the News

Christie administration breached deal with Teacher's Union

The Washington Post reports on an arbitrator's award finding the City of Newark, NJ failed to follow its bargaining agreement with the Teacher's Union. Chris Christie’s administration violated teachers contract, arbitrator says. It’s going to cost a lot to fix. Arbitrator James Mastraini's award can be found here.

Police discipline, arbitration and public policy 

The Minneapolis Star-Tribune reports on an effort by the City of Richfield, MN to vacate an arbitrator's award reinstating a police officer whose employment had been terminated for allegedly using excessive force and failing to properly document his contact with the subject during his interaction. Richfield challenges arbitration system, saying it keeps problem cops on the job Arbitrator Charlotte Neigh overturned the termination, here, finding the force used by grievant was not excessive, and finding that failure to write a report of the contact was not an effort to conceal his actions but was unacceptable performance warranting a three day suspension.
The City maintains that the award is contrary to public policy The article links to the briefs of the City and the Union, and one of the several amicus briefs filed in the case. The article also links to a study by University of Minnesota law student Tyler Adams on Factors in Police Misconduct Arbitration Outcomes

Dispute over surviving spouse's pension benefit within jurisdiction of arbitrator

The Pennsylvania Supreme Court has upheld the jurisdiction of an arbitrator to determine the merits of a claim filed by the widow of a police officer who died while off duty challenging the City of Arnold's efforts to reduce the amount of the pension payable to the widow and seeking to recoup alleged excess payments. State Supreme Court: Arnold cop's widow entitled to half his pay The City had argued that the basis of the claim was statutory and therefore beyond the jurisdiction of the arbitrator. The Court found, however, that because the relevant statute was incorporated into the bargaining agreement the issue of interpretation of that statute was within the arbitrator's jurisdiction. The Court's opinion can be found here.

Arbitrator uphold termination of police officer for false reports

The San Angelo, TX Standard-Times reports on the decision of Arbitrator Ruben Campos upholding the"indefinite suspension" of a San Angelo police officer for allegedly falsely reporting her activities at a crime scene. Suspension of San Angelo police officer upheld Arbitrator Campos concluded that the City had established its claim and there was no evidence of mitigating factors warranting reversal of the decision.
Arbitrator Campos' award can be found here.

Sunday, November 5, 2017

Ninth Circuit-Award should be enforced even if it is "incorrect"

The Ninth Circuit, reversing the District court, has ordered the enforcement of an arbitration award between Holsum Bakery and the Bakery Workers. Holsum Bakery Inc. v. Bakery, Confectionary, Tobacco Workers, Local 232.  The dispute involved a claim by the Union that Holsum had breached the contract with the Union when it unilaterally ceased what the Union claimed to be a practice of paying "lap," or elapsed time, to certain employees.

The cba provided:

All non-voluntary hours scheduled or required to be worked by an Associate without a 12-hour break between shifts shall be paid for at time and one-half (1 1/2) the regular hourly rate ... for each  non-voluntary hour worked in the 12-hour (or 24-hour period on scheduled days off) ...

A prior arbitration between the parties addressed the issue of payment of lap time during weeks in which a holiday fell. After prevailing in that case, Holsum addressed what it claimed were inconsistent practices between supervisors concerning the payment of lap time in non-holiday weeks. The core of the dispute involved conflicting interpretations of what constituted  employees "scheduled days off." The Company claimed that schedules were posted every Friday for the following week, and that it had the right under the cba to vary employees' days off each week. The Union claimed that each employee had what was essentially a fixed "scheduled day off" regardless of the weekly schedule, and that lap time was owed for days an employee was scheduled to work on their "regular day off."

The dispute was submitted to Arbitrator Bonnie Prouty Castrey for resolution. The Arbitrator upheld the grievance, concluding that the contract language was clear and unambiguous, and the Union had established that employees had been paid lap time when they had been required to work scheduled days off. The Arbitrator's award can be found here.

Holsum sought to vacate the award, claiming that the award failed to draw its essence from the contract, that the Arbitrator had exceeded her authority and exceeded the scope of the issue presented, misapplied "basic principles" of contract construction in violation of public policy, and that the award manifested disregard of the law. The Union cross moved for enforcement.

The District Court vacated the award here. It concluded that the Arbitrator had "altered" rather than interpreted the contract, noting:

  Pursuant to the CBA, the Arbitrator does not have the authority to add to or alter the CBA. That is exactly what she did here. In Section 4D, the Company must post the next week's schedule each Friday. If every employee has  "regularly scheduled" time off, there would be no need to post a schedule. Additionally, Section 4A states that Section 4 "shall not be construed as a guarantee of hours of work per weaker days of work per week." ... The CBA clearly and unambiguously states that an employee shall be paid lap time if they non-voluntarily work on  "scheduled days off." The Arbitrator cannot arbitrarily add the word "regularly" to the CBA; "regularly scheduled days off" has a completely different meaning than "scheduled days off" as stated in the CBA, Section 4C. Here, the Arbitrator did not interpret the CBA; she modified it. Applying the plain meaning rule, the CBA needed no interpretation. ... To the extent the Arbitrator "interpreted" the CBA, she only "interpreted the meaning of "all" and "shall," neither of which were disputed by the parties. 

The Union appealed, and the Ninth Circuit reversed. Noting that an arbitrator's award must be upheld if the arbitrator is even arguably construing or applying the contract the Circuit concluded,  contrary to the District Court,  that this is what Arbitrator Castrey had done:

The arbitrator in this case concluded that the use of the word "all" in § 4.C of the CBA "means that every hour that is scheduled or required to be worked by an employee that is not voluntary is to be compensated." She also concluded that the specific language in § 4.C controlled over general language elsewhere in the CBA governing shift scheduling. And, the arbitrator found that, contrary to Holsum's assertions, employees did have regularly scheduled days off. Finally, she concluded that Holsum violated the CBA when it refused to pay "lap time" to "all employees who were scheduled or required to work on their scheduled day off." Because the arbitrator interpreted and applied the CBA in reaching these conclusions, the award, even if incorrect, drew its essence from the agreement.

Having determined that the Arbitrator's award may have misinterpreted the contract but didn't disregard it, the Court reversed and remanded, effectively confirming the award.

Sunday, October 29, 2017

Police officer "wasted" second chance. Domestic violence and related publicity supports termination

Grievant began his employment as a police officer with the City of Coral Springs, FL in 2005. In 2010 he was arrested and convicted of two counts of battery on a detainee and his employment was terminated. An arbitrator subsequently ordered his reinstatement but found significant discipline to be warranted and awarded no back pay for the approximately two years he was off the job. He returned to employment in December 2013.

On April 22, 2015, while off duty, grievant was involved in a "heated argument" with his wife. During the course of the argument grievant punched a hole in the wall and used a crowbar to deflate the tires on his wife's car.  Grievant was arrested for domestic battery and a "no contact" order was entered against him. The altercation was covered by the local news station, and the story included reference to his prior conviction and the current charge of domestic violence.

On April 28, 2015 a neighbor called 911 to report that grievant had entered the marital home. The Sheriff's Office arrived shortly after grievant's wife also arrived. The wife falsely informed the Sheriff's officers that her husband was not on the premises. Nevertheless, a SWAT team was deployed  and remained on the scene after an initial aborted contact with grievant. There was conflicting testimony about the amount of further contact with grievant. Grievant claimed he had not been aware that the SWAT team was outside the house. The City maintained that local officers had talked and texted with grievant and informed him that SWAT was outside the house and had advised him to cooperate with the Sheriff's officers. Ultimately grievant's wife texted him and persuaded him to come out of the house. Grievant was arrested for violation of the no contact order and was formally served with a restraining order for the April 22 incident.

Once again, local news stations were on the scene throughout and took pictures of the deployed SWAT team.

In early May, grievant's wife dropped all criminal charges against him and he was never convicted of domestic violence/battery.

Following an investigation, the City terminated grievant's employment, and that action was ultimately submitted to Arbitrator Martin O. Holland for review.

Arbitrator Holland upheld the termination.  He noted initially the importance of public trust in its police officers:

Police Officers have a widespread respect from the general public. The public recognizes the significant hazards and risks police officers face every day. Police officers are the first line of defense from attacks or criminal conduct. A police career provides good wages, pension and benefits. Public trust is paramount as police officers provide service and protection to their citizens. 

Addressing the conflicting testimony, Arbitrator Holland found grievant's claim that the had not been aware that the SWAT team was outside his residence "absurd." He also found grievant's testimony "flippant" and "pugnacious." Reviewing grievant's disciplinary history, the Arbitrator observed that following his earlier termination an arbitrator had reinstated him but found his past discipline "significant" and a "major infraction." Nevertheless, that arbitrator had given grievant a "second chance" to save his career.

On the merits of the current discipline, Arbitrator Holland also addressed the fact that the conduct in issue had occurred while grievant was off duty. Notwithstanding that, the Arbitrator found discipline appropriate:

Generally, off-duty conduct is not a basis for discipline. ThyssenKrupp Budd Co., 121 LA 164 (Goldberg, 2005)   Arbitrators consistently hold off-duty conduct as outside an employer's realm. However, because of the special nature of police employment, municipalities may impose discipline. Kitsap County, 118 LA 1173 (Gaba, 2003)   A police officer is always a police officer whether on or off duty. They often carry firearms and are expected to be a steward of public safety even off-duty. The City, here, enacted reasonable Rules and Regulations in General Order-4 spelling out the on-duty and off-duty expectations of its police officers.   Those rules and regulations are well-founded and universally applied throughout the United States. There is no surprise when a city enacts standards of conduct for both on duty and off duty conduct. Professional conduct is expected of all police personnel, 365 days per year and 24 hours per day. 

He also found that the absence of a criminal conviction was not dispositive of the grievance, noting that "Just cause is not defined by a criminal statute."

Upholding the termination, Arbitrator Holland concluded that grievant had "wasted" his second chance, finding:

The City's reputation was harmed by the actions of the Grievant. Widespread media reports of aberrant behavior by a police officer is conduct unbecoming.
 The seriousness of [grievant's] infractions of General Order - 4 warrants discharge. Multiple police calls, multiple arrests, and multiple investigations outweigh any mitigating factors. 

Arbitrator Holland's award can be found here.

Sunday, October 22, 2017

Arbitrator finds no contractual basis for claimed "constructive resignation"

Arbitrator Bruce McIntosh upheld a grievance filed by the Dayton Education Association on behalf of a teacher whose employment was terminated because of her alleged "constructive termination."

Grievant was involved in  an "altercation" with her principal which included "some physical interaction" between her and the principal. Following this altercation, grievant was placed on paid administrative leave. In May of 2016 the Dayton Board of Education notified grievant that it had received information that while on leave she had accepted employment with a local charter school effective April 1 of that year. The Board deemed the acceptance of a position with the charter school while grievant was on administrative leave a "constructive resignation." It notified grievant that it was terminating the leave and would be seeking reimbursement for all payments it made to her after April 1.

The Association grieved this action, arguing that there was no contractual basis for a "constructive resignation," that there was no prohibition on grievant accepting alternate employment while she was on leave, and that the District's actions amounted to a termination without the procedural protections of the collective barging agreement and was without just cause. The Board maintained that in seeking and accepting a position with an incompatible work schedule grievant had "indisputably abandoned" her job with the Board of Education and that she therefore had constructively resigned her position. It asserted that it was therefore not required to show just cause or otherwise provide notice to the grievant.

Arbitrator McIntosh agreed with the Union. He noted:

       A review of the CBA reveals that there [sic] it does not deal with paid administrative leave nor with constructive resignation. Additionally, there was no evidence of any restrictions placed on Grievant while on Leave except that she could not report to work and her presence on school grounds would be considered trespass. To assert that her employment by the charter school prevented her from being available for work with her former employer with the direction by it not to venture on the school's property, appears to be, at best, an anomaly.
       The Arbitrator is unable to finds any contractual basis for Grievant's acceptance for a separate school contract to be "good and just cause" for termination pursuant to [the cba].

Arbitrator McIntosh ordered the School Board to pay grievant for whatever wages she did not receive for the balance of the school year, less any sums she received from the charter school. The Arbitrator's award can be found here.

Sunday, October 8, 2017

Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator

The Fraternal Order of Police, Lodge 10 grieved the termination of an employee of the State of Delaware. An arbitrator converted the termination to a suspension, ordered grievant's reinstatement, and directed the State to "[m]ake Grievant whole for all lost wages, benefits and seniority from the date of her termination, less the ninety (90) day period of time represented by the suspension."

Approximately nine months later the union filed a Petition to enforce the arbitrator's award. The State filed a Motion to Dismiss. The State did not seek to vacate or overturn the award. Rather, it sought a declaration from the Court that the term "make whole" used by the arbitrator required an offset of interim earnings. Alternatively, it requested that the issue be remanded to the arbitrator for clarification.  The Delaware Court of Chancery denied both of these requests. Noting the absence of any Delaware cases addressing the issue before it, which it described as "whether an arbitration award that is silent on the matter of the offset of interim wages should include an offset," the Court elected to follow the reasoning of the Seventh Circuit in International Union of Operating Engineers, Local No. 841 v. Murphy Co

The Court summarized the holding of the Seventh Circuit:

...if an arbitrator does not "mention offsets in his ruling it means that no offset was granted," especially when the defendant "knew or should have known that the issue of damages was before the arbitrator."... "To hold otherwise would only encourage employers to withhold evidence or comment on important issues, thereby undermining arbitration as a valuable tool for expeditiously and inexpensively resolving employer-employee disputes."[footnotes omitted]

The Court noted that the State had had ample opportunity to raise the offset issue but failed to address it other than to request that all of the Unions requested remedies be denied. The Court declined to adopt the State's argument that offsets of interim earnings is common in arbitration and the Court should assume that a "make whole" remedy includes an offset.

The Court also declined to order remand to the arbitrator, finding no ambiguity in the award. It concluded:

Defendant failed to ask the arbitrator to offset the back-pay award, and the arbitrator's silence as to offset in the Arbitration Award means that none was granted. Thus, there is no ambiguity that would allow me to remand the case back to the arbitrator for clarification.

The Court's opinion can be found here. A similar decision was reached by the Fifth Circuit in International Chemical Workers Union, Local 683C v. Columbian Chemicals Co.

Sunday, October 1, 2017

Termination of police officer for off duty DWI upheld

Grievant was employed as a Sergeant on the Litchfield, MN police department. The department consisted of a Chief and eight licensed officers. In the early morning of October 27, 2016, grievant, while driving off duty, was stopped by a Sheriff's Deputy. The Deputy administered a preliminary blood test that registered grievant's blood alcohol content at .146. He questioned grievant concerning whether he had drinking. According to the Deputy, grievant initially denied having been drinking but later claimed to have had two, or maybe three, beers a couple of hours earlier. Grievant was arrested and charged with "driving while impaired" (DWI). A blood alcohol test approximately two hours later placed grievant's blood alcohol content at .186.

Following an investigation, grievant's employment was terminated for violation of several Department policies, including "criminal, dishonest, or disrespectful conduct, whether on or off duty that adversely affects the members relationship with the department,"failure to maintain a current drivers license {grievant's license had been administratively revoked following the incident], giving false or misleading statements [related to grievant's denial of having been drinking when questioned by the Deputy], and conduct unbecoming.

The termination was grieved and ultimately submitted to Arbitrator Carol Tidwell for decision.

Initially, Arbitrator Tidwell found that the policies in issue were reasonable ones. She noted:

The arbitrator finds that the policies, principles, and procedures cited above which the Employer asserts were violated by the Grievant are all eminently reasonable, including the provisions that relate to off duty conduct. Police officers are charged with enforcing the law and their violation of the law, especially when this occurs in a public setting as is the case with a DWI violation on a public road, is especially harmful to the reputation and ability of the police to maintain law and order among the general population. This is just as true when the behavior occurs off duty. It is accurate, as the City’s rules state, that an officer’s ability to do his or her job is dependent upon the respect and confidence the local population has in the police. It is highly reasonable for the City to consider the potential effect that an officer’s behavior at any time, on or off duty, has on the community’s opinion of the officer and by extension the local police department, and to promulgate rules that require exemplary behavior of its officers at all times. 

She also found that grievant had in fact violated the rules. While the criminal charges against grievant remained pending, she found that the Department had established that grievant "was indeed driving his vehicle on a public road having consumed a large quantity of alcoholic a state of impairment ...," and had given false information to the Deputy who stopped him. Similarly she found that grievant's loss of his driver's license and the subsequent conditional reinstatement subject to an ignition interlock device posed legitimate safety concerns and would engender a negative reaction in the community. Grievant's actions, concluded the Arbitrator, were egregious and the impact that conduct  in a small community particularly severe.

Arbitrator Tidwell also found that the City had established that grievant "lied repeatedly" to the arresting Deputy. While agreeing with the Union that the existence of a Brady/Giglio disclosure obligation does not automatically require an officer's termination, "it does not mean that a Brady/Giglio officer must be retained in the Department if the Department cannot accommodate that officer."

Turning to potential mitigating factors, the Arbitrator noted grievant's prior alcohol related issues and his apparent unwillingness to confront his problem with alcohol. The Arbitrator also remarked on the absence of any other officer of the Department testifying in his behalf. She did, however, reject Department's contention that grievant's plea of not guilty to the DWI charge, and his action in contesting the validity of the claimed consent to a blood test, evidenced a refusal on his part to "take responsibility" for his actions, concluding:

The arbitrator is convinced ... that employees such as the Grievant in this case should not be effectively forced to forego their Constitutional right to a trial and to contest evidence against themselves in a criminal proceeding in order to maintain or regain their employment.

Finally the Arbitrator considered and rejected potential remedies short of termination. Demotion, she concluded, would remove his leadership responsibilities but would not address the violation of the standards of conduct expected of him. Reinstatement on a last chance basis, or after completion of an alcohol abuse program would of necessity be based on grievance's recognition of the need for such treatment and a willingness to undertake it, something she concluded he was not ready to do. In light of this she noted:

It is well-settled in labor matters concerning discipline that the punishment must fit the crime. The arbitrator concludes that upholding the Grievant’s termination meets this standard; indeed she concludes that it is the only appropriate remedy in this case.

Arbitrator Tidwell's award can be found here.  A case also addressing whether an officer's denial of acts of misconduct provide a basis for a charge of dishonesty is discussed at Police officer's denial of misconduct insufficient to establish untruthfulness