Sunday, January 13, 2019

Timeliness, functus officio, mitigating circumstances, and use of force

Arbitrator erred in determining timelines of a grievance

The Fifth Circuit has effectively vacated an award of Arbitrator Daniel Jennings (here), concluding that the Arbitrator's reliance on the execution date of the contract rather than its ratification date triggered the start of the timeline for the filing of a grievance. Southwest Airlines Company v. Local 555, Transport Workers Union of America. TWU Local 555 sought to arbitrate Southwest's use of non-union vendors to clean the interior of its aircraft. The cba called for a ten day period from the date of the union's knowledge of the alleged violation for the filing of a grievance. The dispute in this case turned on whether that ten day period started on the ratification date or the execution date of the cba. The cba provided that the cba would become effective "when [it] is accepted by the Company and ratified by the membership." The cba was ratified on February 19, 2016. It was actually signed on March 16, 2016. Rejecting the conclusion of the Arbitrator, the Court found that the contract became effective upon ratification, and since the grievance was not filed within 10 days of that occurrence it was untimely. It found the Arbitrator's contrary conclusion in conflict with the plain language of the contract;

It was not an arguable construction of the CBA and instead amounted to the arbitrator's own brand of industrial justice. The arbitrator's interpretation failed to account for (1) the CBA's title page that sets February 19, 2016 through February 18, 2021 as the "period" for the CBA; (2) Article 29's express language that the CBA shall "remain in full force and effect as of the date of ratification through and including February 18, 2021"; (3) the CBA's one-time bonus paid to employees working under the CBA as "of the Date of Ratification"; and (4) the parties' conduct, including Southwest's payment of the increased rates and bonuses set out in the CBA, starting after the CBA was ratified but before it was signed.

Functus officio precludes court's consideration of Arbitrator's third, fourth and fifth version of award.

The  Court of Appeals of Ohio has affirmed a lower court decision vacating an award of Arbitrator Susan Grody Ruben.  The award reinstated an employee of the Youngstown Developmental Center who had been dismissed for alleged abuse of a client at the facility. Office of Collective Bargaining v. Ohio Civil Service Employees Ass'n, Local 11.  Grievant had ben accused of abuse when she allegedly either slapped the hand of the client or forcibly knocked something out of her hand. In an award dated May 28, 2015, the Arbitrator rejected the Union's argument that she should use the definition of abuse found in the Ohio Code and used instead the definition of abuse found in the Department's Standards of Conduct. Nevertheless she found that grievant had engaged in the conduct alleged and that "slapping or knocking" fell within that definition. The next morning, the Arbitrator sent a revised award, correcting a typo and several dropped sentences but making no substantive changes in the award. The Arbitrator issued a third award on May 30, 2015, finding that grievant's conduct did not constitute abuse  as that term is used in the cba but was contrary to the Department's Standards of Conduct but still reduced the dismissal to a suspension "for the first offense of abuse." Later that same day the Arbitrator issued another award, substantially the same but noting the suspension was for "for a first offense of Rules E-3 and E-5." Finally the Arbitrator issued a fifth award on May 31, 2015 containing some additional discussion, and adopting the definition of abuse found in the Ohio Code (a position she had rejected in the first award). Applying that definition the Arbitrator found that grievant's conduct did not constitute client abuse as that term is used in the cba.

The State Office of Collective Bargaining and the Department sought to vacate the award. The trial court first determined that the Arbitrator had no authority to make substantive changes to the original award. It then concluded that the Arbitrator had exceeded her authority in concluding that the Department did not have just cause to dismiss grievant after finding that she had committed client abuse.

The Union appealed, and the appellate court affirmed. It agreed with the lower Court that its review should be limited to the original award, noting:

The doctrine functus officio is not applicable, however, where the arbitrator does not attempt to change his opinion in a substantive way.... Accordingly, there are several exceptions to the doctrine, such as "(1) where the arbitrator can `correct a mistake which is apparent on the face of [the] award'; (2) where `the award does not adjudicate an issue which has been submitted, then as to [the] issue the arbitrator has not exhausted his function and it remains open to him for subsequent determination'; and (3) where `the award, although seemingly complete, leaves doubt whether the submission has been fully executed, an ambiguity arises which the arbitrator is entitled to clarify.'" ...
None of the recognized exceptions apply in this case. Our review of the arbitrator's original opinion and award shows that the arbitrator exhausted her function by fully adjudicating all submitted issues and by making a final award. The arbitrator's original opinion and award makes all required factual findings, sets forth the applicable law, reaches the necessary legal conclusions, and makes an award that finally determines all pending matters. In our view, the arbitrator's third, fourth, and fifth iterations of the opinion and award affected changes to the original opinion and award that can only be characterized as substantive in nature both factually and legally. This is the very circumstance that the doctrine of functus officio and Miller intended to prevent.

In light of the Arbitrator's finding in the original award that grievant had committed client abuse, and the language of the cba that In cases involving termination, if the arbitrator finds that there has been an abuse of a patient or another in the care or custody of the State of Ohio, the arbitrator does not have authority to modify the termination of an employee committing such abuse...." the Court found the Arbitrator's award "irreconcilable with the CBA."

Arbitrator failed to consider mitigation circumstances in determining appropriateness of discipline, case remanded to the Arbitrator for reconsideration

The Court of Appeals for the Federal Circuit has remanded a dispute to the Arbitrator because the Arbitrator ignored certain evidence of mitigating circumstances. Grievant was an officer with the United States Park Police. Koester v. United States Park Police He was dismissed for allegedly consuming alcohol on duty and being impaired while on duty due to alcohol consumption. Arbitrator James Harkless issued an award upholding the dismissal.The Union appealed, asserting that the Arbitrator had failed to consider  evidence of mitigation which had been presented at the hearing but which had not previously been presented to the Park Police. Agreeing with the Union, the Court noted:

In this case, the arbitrator abused his discretion when, during his independent assessment of the Douglas factors, he refused to consider evidence that he believed was never presented to the agency. He gave no weight to Mr. Koester's ability to demonstrate improvement after completing the Employee Assistance Program, the impact of Hurricane Sandy, the unfriendly work environment, and the effect of Mr. Koester's wife's poor immigration interview because the Union did not refer to that evidence at the agency level in its response to the Park Police's proposed removal. That rationale for disregarding evidence is clearly contrary to our decision in Norris. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 n.2 (2014) (indicating that taking an erroneous view of the law necessarily constitutes an abuse of discretion). And the arbitrator's erroneous view of the law is not harmless. He gave no alternative explanation for discounting some of that evidence even if it were in the mix, and we therefore cannot say without impermissibly reweighing the evidence ourselves whether that new body of evidence would alter the arbitrator's evaluation of the reasonableness of the agency's removal penalty.

The Court remanded the dispute to the Arbitrator and directed him to independently assess the relevant Douglas factors "taking into accountable of then evidence presented, including purported new evidence, now of record"

Court refuses to overturn award reinstating police officer despite claim that award was contrary to public policy

The Minnesota District Court has denied a request to vacate as contrary to public policy an award (discussed here) that reinstated a police officer dismissed for alleged use of excessive force. City of Duluth v. Duluth Police Union, Local 807. The arbitrator found that the officer's use of force was unreasonable, but that the penalty of termination was too severe.

While noting that the same issue is currently pending in the Minnesota Supreme Court (in a case discussed here), the District Court found that the current state of the law did not warrant vacating on public policy grounds the Arbitrator's conclusion that the discipline was too stringent. 

Sunday, January 6, 2019

Court upholds arbitrator's award finding unilateral change in past practice, rejects public policy challenge

The District Court for the Northern District of Illinois has confirmed an award of Arbitrator Edward Krinsky that found  Mondelez Global improperly and unilateral modified a past practice allowing employee to voluntarily work seven days without a day of rest. Mondelez Global, LLC v International Association of Machinists and Aerospace Workers, AFL-CIO, District 8, Local Lodge 1202.

   For "many years" employees had been allowed, on a voluntary basis,  to work seven consecutive days during a calendar work week without having 24 hours of rest. In 2013 a new Human Resources Director became aware of an Illinois statute  providing that employers "shall allow every employee ... at least twenty-four consecutive hours of rest in every calendar week in addition to the regular period of rest allowed at the close of each working day." The statute also provided that the Department of Labor could grant permits authorizing the employment of a person on days of rest based on, among other things, "business necessity and economic viability in granting such permits." The Company requested permits from the DOL but never received them. In 2015, the company modified its practice, and refused to allow employees not covered by a valid permit to voluntarily work seven days straight.

The Machinists Union grieved this action and the matter was ultimately submitted to arbitration. Arbitrator Krisnsky sustained the grievance, concluding that there was insufficient evidence that the statute prohibited employees from voluntarily working without day of rest, that the contract did not prohibit such a practice, and that the Company acted improperly in terminating the practice during the term of the agreement. He noted:

The Company was obligated to continue the practice during the life of the Agreement unless there was an agreement with the Union to change it. Without such an agreement to change the practice, the Company could have notified the Union of its intent to end the practice and that could then have been the subject of bargaining for the next Agreement. The Company could not simply end the practice unilaterally during the term of the Agreement.

In reaching his decision Arbitrator Krinsky found support in an earlier award of Arbitrator Amadeo Grieco involving a similar dispute at another facility of the Company. (That award was confirmed in Mondelez Global, LLC v. International Association of Machinists and Aerospace Workers, AFL-CIO, District 8)    Arbitrator Grieco had similarly rejected the Company's position on the need to eliminate the past practice, noting that the statute was at least ambiguous and also noting prior testimony of a former DOL General Counsel that a side agreement between a City and a police union allowing police to voluntarily work seven consecutive days did not violate the statute.

In rejecting the Company's request to vacate the award, the Court found no basis for the Company's claim that it was contrary to public policy as compelling the Company to violate the day of rest statute. The Court concluded:

In sum, the cited provision of ODRISA, as it has been administered by the IDOL, allows parties to contract around it, which is exactly what Mondelez and the union have done for many years. Accordingly, the arbitrator's decision was not contrary to a "well defined and dominant" public policy. And as the arbitrator correctly concluded, MG was not entitled to unilaterally change a long-standing mutually understood and implemented past practice, particularly one effectively memorialized in the CBA, without bargaining with the union.

Sunday, December 9, 2018

Quick Hits - Limits on arbitrator's authority, omissions on an application, "no-add" provisions and contract modification, and displacement and discipline

Award vacated - Reinstatement order ignored cba limitation on arbitrator's authority

The District Court in Massachusetts has vacated an award of Arbitrator Michael Stutz reinstating an employee dismissed by Steward Holy Family Hospital. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association .  Grievant was employed by the hospital as a nurse. She was dismissed following an incident during which she was alleged to have "assaulted" another employee by grabbing her face and speaking to her "like a baby."The two had been in a dispute about conflicting vacation requests. Grievant denied any physical contact but Arbitrator Stutz found her denials not credible. While concluding that discipline was appropriate he concluded that termination was too severe and modified the discipline to a written warning. The hospital sought to vacate the award as beyond the arbitrator's authority. It noted language in the parties agreement that prohibited the arbitrator from substituting his judgment for that of the Hospital. Vacating the award, the District Court found:

Once the arbitrator determined that [grievant] had engaged in the specific alleged misconduct in violation of the Hospital's policy, his role was fulfilled. ... By going further and reducing the discipline imposed by the Hospital to what he believed was more appropriate, the arbitrator was prescribing his own brand of industrial justice in violation of the plain terms of the contract.

Termination of Officer involved in Tamir Rice shooting upheld

Arbitrator James Rimmel has denied a grievance contesting the termination of the officer involved in the shooting of Tamir Rice. Arbitrator Rimmel's award can be found here. The termination was not because of any conduct related to the shooting, but from what the City claimed were misstatements or omissions in grievant's personal history statement submitted in connection with his application for employment and discovered during the investigation of the shooting. Arbitrator Rimmel found that the City had established grounds for discipline, and that termination was consistent with the Department's disciplinary matrix and not imposed disparately. He noted that while the shooting precipitated the investigation that led to the discipline "I am tasked solely to adjudicate whiter the City had just cause to terminate grievant for his alleged omission and/or failure to provide full and complete information his PHS when applying for employment with the City. That is my focus here!"
The Union has indicated it will appeal the arbitrator's decision focusing on "what they believe are inconsistencies in the ruling and that the arbitrator’s decision was affected by public pressure outside the facts of the case." Cleveland police union determined to return officer who killed Tamir Rice back to the force
The question of the sometimes differing expectations of the real issue to be decided by the arbitrator is discussed in Reaction to police discipline award highlights mixed expectations about the issue to be decided.
The award addressing the discipline of the second officer on the scene is discussed at Arbitrator reduces suspension of officer involved in Tamir Rice shooting

Ninth Circuit upholds ASARCO liability for copper bonus

A previous post (Waiver of a challenge to the jurisdiction of an arbitrator and how to avoid it) discussed the Court's earlier opinion in this case. The Court has now withdrawn that opinion and replaced it with a new one. ASARCO LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union . The Court again affirmed the District Court's decision refusing to vacate the award of Arbitrator Michael Rappaport. Arbitrator Rappaport found that the parties had made a mutual mistake concerning the impact on the negotiated exclusion of new employees from the Company's pension plan on the eligibility of those employees to participate in the copper bonus program. ASARCO sought to vacate the award, arguing that it was beyond the authority of the arbitrator given the language of the contract and its prohibition on the arbitrator adding to, detracting from, or altering it in any way. The District Court concluded that, after finding the parties were mutually mistaken as to the impact of the exclusion of new employees from the pension on eligibility for then bonus, he was authorized to reform the cba to provide for their eligibility. (No-add" language in cba doesn't prevent arbitrator from modifying contract). A majority of the Ninth Circuit (over a dissent asserting that its conclusion was "flatly wrong") has now determined that "Upon concluding that the parties were mutually mistaken as to the impact of the 2011 MOA on new hires' eligibility for the Bonus, the arbitrator was authorized to reform the CBA despite ASARCO's protest."

Sixth Circuit upholds NRAB decision on dispute over discipline and displacement rights

A panel of the National Railway Adjustment Board denied a grievance (here) challenging discipline imposed by CSX on an employee for having missed minimum availability requirements while considering his displacement rights.The Carrier claimed that work had been available to him but that he chose to forgo that work pending exercise of his seniority to the assignment he ultimately selected. Claimant maintained that he was protected from discipline for the full 48 hours the cba allowed for him to consider his displacement options. The panel concluded:

Section 1 of Article XII addresses only what happens after 48 hours if the employee has failed to exercise seniority to his next assignment during that time. Section 1 says nothing about the implications of delaying his selection, and thereby making himself unavailable, while work is otherwise available to him.

The Union sought to challenge the award, arguing that it was contrary to the plain language the contract, but the District Court granted summary judgment to CSX (here).The Sixth Circuit (over a strong dissent) has affirmed that decision. International Association of Sheet Metal, Air, Rail and Transportation Workers v, CSX Transp., Inc. The Court held that because the arbitrator was "arguably construing" the contract the award was entitled to enforcement, noting:

... it was within the arbitrator's discretion to find that the displacement policies govern the rights of senior employees vis-à-vis more junior employees, whereas CSXT's availability policies govern the rights of employees vis-à-vis their employer. As CSXT argued before the arbitrator, "Nothing in the Agreements creating the 48-hour period for exercising seniority to another assignment also created the right to be unavailable for work during that period." (R. 1-1, Page ID# 13.) The arbitrator acted within her discretion to credit this statement as true, based on the face of Article XII itself as well as the 1996 Q&As. To be sure, there may be reasonable disagreement as to whether the arbitrator's interpretation of the CBA was correct. But the arbitrator's reasoning does show that she "appeared to be engaged in interpretation," and the outcome she reached was not "ignor[ant]" of the CBA's "plain language."

Friday, November 16, 2018

Arbitrator rejects claim that Deputy's "isolated lying incident" makes him Giglio impaired or provides just cause for termination

Arbitrator Richard J. Miller overturned the termination of a Benton County, MN Deputy. Benton County, Foley, Minnesota and Law Enforcement Labor Services, Inc. Grievant began his employment with the County in 2007. He was recognized as a "good and dependable" Deputy. In 2012, grievant sought and received a transfer to a multi-jurisdiction task force focused on violent crime. The new assignment was less structured than his previous position and was subject to looser oversight. Grievant began to fall behind in his new position, missing or failing to timely complete reports and occasionally not properly handling evidence. Grievant's ADHD may have contributed to some of these issues in the less structured environment of the task force. In July 2016 a task force supervisor became aware of missing reports in 43 of the 71 cases grievant had been assigned. In response to questions about the missing reports grievant claimed that most of the reports were in various stages of completion on external storage devices. Grievant was required to complete the missing reports, which he did and submitted the following Monday.

A Lieutenant reviewing the reports noticed that all of the reports had a "created date" on the preceding weekend and later met with grievant and asked where he had located the reports he had completed. Grievant stated that he had copied them from the external storage device and pasted them into new documents on the County's software program. The Lieutenant directed grievant to submit the device he'd copied them from. Grievant submitted a device, but an analysis showed that it had never contained the files. He later admitted that he was aware that the device he submitted had never contained the documents, but that he had lost the device that had contained them and didn't want his supervisors to know of his carelessness.

At around the same time, grievant submitted several return of search warrants to the Court. The Court staff noticed irregularities, including what appeared to be the judge's signature copied on to other warrants. At the County's request, the State began a criminal investigation of the search warrants. Grievant was interviewed and, according to the investigator, denied having copied or written the Judges name on the warrant. (Grievant later testified that he had been asked if he had forged the judge's signature which he denied.)

The State declined to pursue criminal charges. It noted that the warrants were originally approved by the Judge, but the documents submitted by grievant had the judge's signature copied on them because the originals may have been lost or stolen and grievant "attempted to cure the delayed filing/return by repairing the damaged signatures" before submitting the documents. It noted also that "no unauthorized warrants were executed on citizens."

Thereafter the County conducted its own investigation, during which grievant acknowledged that he had used a copy machine to duplicate the judges signature because several of the original documents had been kept in his desk where they had become stuck together or stained and he wanted to make the documents he submitted appear to be originals.

While the investigation was underway, the County Attorney sent a letter to the Sheriff indicating his belief that he could no longer use grievant as a witness. His letter further informed the Sheriff:

Going forward, my office will be obligated under Minnesota law, as well as our duty under the Rules of Professional Responsibility, to inform Defendants that Deputy Haas is Giglio- impaired. That means open notification that there is evidence that [grievant's] ability to be truthful is in question, in virtually all circumstances. ...
Please understand, that if [grievant] is re-instated, any new case that he is involved in will likely not be charged. [Grievant] has ruined his professional credibility and the confidence of this office and the courts. As you know, proving a case 'beyond a reasonable doubt' is onerous, we have a difficult enough time getting jurors to focus on the facts we present. Having to overcome the additional burden of jurors understandably doubting anything [grievant]  would have to offer, would be untenable and fatal to virtually any case. I cannot and will not put my attorneys in this position.

At the conclusion of its investigation, the County informed grievant that his employment was being terminated for violation of "multiple" office policies.

In his decision, Arbitrator Miller rejected the County's reliance on the opinion of the County Attorney, observing:

It should be noted, however, that even if law enforcement officers have been untruthful in the past, which impacts their credibility, this does not automatically disqualify them from testifying in court. A Giglio issue may need to be disclosed to the defense counsel, but that does not preclude law enforcement officers from testifying.
Clearly, just cause for a discharge cannot be automatically established by the County claiming credibility issues.

Arbitrator Miller concluded that that there was no evidence of a pattern of dishonesty, and "no convincing evidence that the Grievant was dishonest in a official report or in any manner which would affect the rights of a suspect or any member of the general public." He found that the evidence that grievant had lied to the State's investigator during the criminal investigation was unconvincing. He did find that grievant had lied about the reports being stored on an external device.

He concluded:

While lying to anyone is never an accepted practice in the workplace, the Grievant’s lying to his superior in a non- investigative setting is a violation of County Sheriff’s Office Policies and a punishable offense, but there is no convincing argument that this isolated lying incident would make the Grievant Giglio-impaired and unable to testify credibly on behalf of the County. Even if a court were to conclude this incident could be used in effort to impeach the Grievant’s testimony in a criminal proceeding, it is entirely speculative whether a defense would attempt to do so, especially since the Grievant claims that he lied as a face-saving effort to buy additional time in which to locate the actual hard drive. Many jurors or a judge might well be aware of individuals who have lied to a work supervisor to avoid embarrassment. Therefore, the County’s argument that there is no role that the Grievant could be used in and continued employment is not a possibility has not been proven by the evidence.

Nevertheless, finding that certain of grievant's actions "ill-advised" and reflected poorly on his judgement, he ordered grievant's reinstatement without back pay.

The Massachusetts Supreme Judicial Court engaged in a similar analysis, discussed in Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report

Sunday, October 28, 2018

Police use of force -training, conduct unbecoming, and progressive discipline

Two recent awards deal with these issues

In Cleveland Police Patrolmen's Association and City of Cleveland Arbitrator Daniel Zeiser sustained a grievance filed on behalf of a Cleveland police officer who had been dismissed for alleged violation of the Department's Use of Force policy.

Grievant responded to a call of a burglary in progress. He and his partner approached the grocery store involved with their guns drawn and their fingers on the trigger. A suspect exited the building and the two officers approached him. Grievant placed his left hand on the suspect's shoulder and ordered him to "drop everything" and put his hands up. The suspect did not comply but, according to grievant, stood up quickly, twisting grievant's body. Grievant testified that the felt he was under attack and "feared for his life." After a brief struggle, during which grievant asserted the suspect reached for his gun, grievant fatally shot him. The facts are set forth in more detail in Arbitrator Zeiser's award.

 After an investigation by the Department, grievant's employment was terminated for claimed use of deadly force "that was not objectively reasonable and not necessary or proportional" and for allegedly not effectively de-escalating the situation. Grievant was also indicted for "criminal negligence." He was acquitted of the criminal charge after a bench trial in which the judge concluded that the shooting "implied an intentional act inconsistent with the charge of criminal negligence."

In his award, Arbitrator Zeiser concluded that the City had failed to establish that grievant's actions were objectively unreasonable. He noted that, regarding both charges, the city appeared to be viewing the incidents through hindsight rather than as reasonably perceived by grievant during the incident. 

 There was considerable testimony about whether grievant should have had his finger on the trigger and the City's claim that insufficient time was given for the suspect to comply. On these points Arbitrator Zeiser observed:

The Employer argues that the Grievant and King should have taken different actions. That is, they should not have approached the building with their fingers on the trigger, i.e., on target, on trigger. [Public Safety Director] McGrath testified they should have used cover, the Grievant should not have had his finger on the trigger because he was the contact officer, and the Grievant should have given [the suspect]  time to react and comply. While these are valid points, they go more to tactics and training, not directly to the issue of the use of deadly force. To the Arbitrator, the Employer has analyzed the issue of reasonableness using hindsight. While this is difficult to avoid, it is not permitted.

The Arbitrator similarly analyzed the City's claim that grievant had not appropriately de-escalated the situation:

McGrath also found the Grievant guilty of Specification 2 for failing to de-escalate the situation by increasing officer presence, or using a less lethal method or an alternative weapon. First, the Grievant and King did attempt to de-escalate. They used verbal persuasion tactics and warnings to gain [the suspect's] cooperation. He did not comply. The Grievant used his left arm to try to hold [the suspect] down. This also did not work. Both are listed as appropriate tactics in paragraph A of Section III, Force Level of the Use of Force policy. Paragraph B continues that officers are to determine the level of force necessary to protect themselves or gain compliance and consider alternative tactics such as concealment, voice commands, use of a Crisis Intervention Team, a show of force, or allowing time for the suspect to regain self-control (JX 9B, pp. 4-5). Thus, it is not so much that the Grievant did not attempt to de-escalate the situation as the Employer disagrees with the de-escalation tactics used. Second, as explained above, at the time the Grievant decided to use deadly force, he did not know whether Jones had a weapon and the encounter only took seconds. Requiring that he decide to use another weapon — his Taser, baton, or pepper spray — against someone who might be armed does not seem reasonable. As we now know, [the suspect] was unarmed. But this was uncertain in the moment the decision was made. Again, it seems clear to the Arbitrator that the Employer is analyzing the incident using hindsight.

In light of his finding that the City failed to establish that grievant's actions were objectively unreasonable, Arbitrator Zeiser ordered grievant's reinstatement with full back pay. 

In City of Euclid, Ohio and FOP, Ohio Labor Council, Inc., Arbitrator Gregory Szuter upheld two of three grievance filed on behalf Euclid police officer Michael Amiott.  Two of the grievances  arose from a  grievant's actions in connection with the traffic stop and arrest of a suspect. (The dash cam video of the stop is available here.)  During the course of the traffic stop grievant instructed the driver to step out of the car and turn away.  As described by the Arbitrator, the driver exited the car but did not turn away, despite a second instruction to do so. An altercation ensued during which grievant's partner used a Taser (which also struck the grievant) in an effort to subdue the driver. The struggle continued and is described by the arbitrator:

Ofc. Amiott was holding Hubbard on the ground. He was saying, "get off me." He repeatedly used racial invectives towards the officers. Ofc. Amiott ordered Hubbard to give him his hands which he did not. Ofc. Amiott delivered three quick punches with his right. Ofc. Gilmer ordered Hubbard to turn over. He did not. Ofc. Amiott said Hubbard was reaching towards his waist and may have a gun. The female [passenger] said "he does not have a gun." Hubbard called back to her to get the cell phone which she did. She returned to the middle of the street to video the incident.
Ofc. Amiott located the Taser and threw it out of the area. Ofc Gilmer attempted to roll Hubbard on his stomach. Hubbard resisted being rolled by repeatedly extending an arm or leg. He stayed on his back. Most of the time Ofc. Gilmer stood over the men giving verbal commands to stop resisting.
While Ofc. Amiott and Hubbard were on the ground Ofc. Amiott was able to take a mounted position over Hubbard's chest and stgraddling [sic] him with Hubbard lying on his back. Ofc. Amiott was exhausted and weak from being tased. He again closed fist strikes to Hubbard's head, five in secession alternating hands while straddling Hubbard's chest. EX Z; TX 508. Ofc. Amiott testified that most strikes did not land. Of about eight he thought half or less landed. He testified that he knew that such blows were not the most effective tactics, but he was limited in his choices. Ofc. Amiott testified that he knew that deadly force could have been justified but he did not wish to draw his weapon while Hubbard was still close in and grappling with him. That is why he used his fists.

An internal disciplinary hearing was conducted on charges that grievant had violated Department rules on Unbecoming Conduct, Unsatisfactory Performance, Insubordination and Improper Use of Force. After the hearing the Chief upheld each of the charges except that of Improper Use of Force. He concluded, according to the Arbitrator, that "a determination on excessive force would be better suited for a trier of fact and not in a discipline setting... ." Accordingly, grievant was found not guilty of Improper Use of Force as a disciplinary violation. Nevertheless the Chief found that the Use of Force charge was "merged" into the Conduct Unbecoming and Unsatisfactory Performance allegations. He suspended grievant for 15 days (apparently the limits of his disciplinary authority) and recommend that the Mayor review the case and add an additional 30 days. The Mayor did so, and during grievant's suspension she also investigated earlier actions of grievant which she said she had not previously been aware of. Just prior to grievant's return from the initial suspension he was dismissed for his actions, including those earlier events not previously the basis for discipline. 

In his award, Arbitrator Szuter denied the grievance regarding the initial 15 day suspension. He concluded that grievant failed to "verbalize" that he was placing the driver under arrest, and that "this failure to verbalize the authority and purpose of the arrest constituted unsatisfactory performance and failure to conform to work standards." He also noted that the charge against grievant was not use of excessive force but failure to conform with standards. He upheld the Chief's decision that the second set of closed fist strikes was ineffective and that:

The Chief is the decider/interpreter of what the highest standards may be. He testified that the Department has been downplaying such strikes finding them generally to be ineffective. The necessity to use them needs to be at a "pretty high level." No testimony disputes that was the standard that the City was seeking. Given the charge made, 10.14 Unsatisfactory Performance, the Arbitrator is convinced that a violation of the standard was proven.

The arbitrator overturned the Mayor's additional suspension and the termination. He found the additional 30 day suspension disproportionate, and suggested the penalty was punitive rather than corrective. Similarly, he concluded the termination was inconsistent with the principle of progressive discipline which the parties had incorporated into their agreement since it provided grievant with no ability to correct his behavior.  

Sunday, October 14, 2018

Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment

Arbitrator awarded back pay but no reinstatement - rejects request to reconsider decision

As noted in an earlier post, Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay, Arbitrator Eric Lindauer found that the City of West Linn, Oregon had just cause to terminate the employment of a police officer because his racially charged Facebook posts violated the City's Social Media policy and because he "could reasonably be perceived as having racially biased views that were disrespectful of African-Americans." The Arbitrator found that the postings "brought discredit to himself, the Department, and the City of West Linn ... ."

 However, because he further found that the City failed to promptly address the issue and "must bear some responsibility for its failure to take active steps, as required by Department Policy, to require [grievant] to remove the offending content from his facebook page," he ordered the City to provide back pay to the grievant from the time of his termination until the date of the Arbitrator's decision.

The City filed a request with the Arbitrator for reconsideration of that backpay order. The City claimed the Arbitrator's back pay remedy exceeded the authority granted to the Arbitrator in the parties' cba and the issue submitted to him by the parties. The stipulated issue was:

Whether the City of West Linn had just cause to terminate the grievant ... . If not, what is the appropriate remedy?

 The City argued that once the Arbitrator found just cause for termination he was without authority to award back pay.

Arbitrator Landauer rejected the City's request. Citing judicial approval of the need for flexibility in remedies, and recognition of the use of the admittedly unusual remedy of back pay without reinstatement  in several published texts, he noted:

Based on these findings which reflected serious procedural failings on the City’s part, the Arbitrator could have overturned the Grievant's termination and reinstated him. However, based on the serious nature of the Grievant's Facebook postings, the Arbitrator did not find this to be an appropriate solution to the problem. Instead, the Arbitrator crafted a remedy that would allow the termination to stand while also awarding back pay to the Grievant, which appropriate [sic] rejected the City's failure to correct [grievant's] inappropriate Facebook postings and instead allowed them to continue.

Arbitrator Landauer also clarified that his award of back pay was limited to lost wages, not including PERS contributions or fringe benefits. He noted that since the termination was upheld, grievant was not entitled to receive fringe benefits that would ordinarily have accrued as part of a back pay award. 

Arbitrator Lindauer's Decision on the Motion for Reconsideration can be found here.

Arbitrator's reliance on external law

Arbitrator George Fleischli largely sustained a grievance filed by IBEW Local 51 alleging that Ameren Illinois Company dismissed an employee without just cause. His award can be found  here. The grievant's employment was terminated for claimed violation of the Company's Workplace Violence Policy, including having a weapon on Company premises. Arbitrator Fleischli found that while grievant did violate the "letter" of the Company rule by having a weapon locked in his vehicle on Company property, the rule was "illegal and unenforceable" against grievant because of the provisions of the Illinois Concealed Carry Act.

The Arbitrator noted a "longstanding debate" among arbitrator's on when, if ever, it is appropriate to consider outside law in connection with the interpretation and application of a cba where the cba "does not purport to incorporate outside law." However he concluded that the Union was not asking him to ignore any provision of the cba (distinguishing the Seventh Circuit's decision in Roadmaster Corp. v. Prod. and Maint. Emp. Local 504) and that the law was clear and served to prevent the Company from applying the rule against grievant because he was in possession of a concealed carry license.

Ameren sought to vacate the award, arguing that the award was in excess of the arbitrator's authority in that it did not draw its essence from the cba. The District Court granted that request, (here) concluding:
Despite finding that the Grievant's possession of a firearm in his vehicle technically violated the Policy ... , the Arbitrator determined that the Company could not enforce its Workplace Violence Policy in light of the Concealed Carry Act. Award at 44. The Court recognizes that the Arbitrator did not specifically find good cause to terminate pursuant to the Workplace Violence Policy. See Arch Ill., 85 F.3d at 1293 (noting that a court can refuse to enforce the award if the arbitrator found just cause to discharge but then stated "something to the effect of `fairness dictates'" that the employee should not have been discharged). Nonetheless, the Arbitrator's award unambiguously reflects that the Arbitrator based his decision on noncontractual grounds. Id. (a court cannot reject an award unless the arbitrator's decision "unambiguously reflect[s] that the arbitrator based his decision on noncontractual grounds").

In this case, the Arbitrator unambiguously based his decision on his interpretation of an external law, the Concealed Carry Act. Nothing in the parties' Agreement allowed the Arbitrator to consider external law. In fact, the Agreement specifically provided that the Arbitrator could not "amend, delete from[,] or add" to the Agreement. Agreement Art. III, Sec. 2. The Arbitrator's award exceeded his authority because the parties' Agreement did not allow the Arbitrator to consider external law.

On the Union's appeal, the Seventh Circuit has reversed the District Court and enforced the Arbitrator's award. Ameren Illinois Company v. IBEW, Local Union 51  The Court did so, however, despite its conclusion that the Arbitrator's effort to distinguish  the Seventh Circuit decision in Roadmaster was a "distinction ... without a difference." It found language in the cba, "overlooked" by both the Arbitrator and the District Court, which incorporated external law into the cba and "firmly establishes the intent of the parties to bring external law such as the Concealed Carry Act within the scope of the bargain."

In light of this conclusion, it found that courts have "no further role to play" in reviewing the terms of the award or whether the Arbitrator correctly applied the law. Accordingly it enforced the Arbitrator's award. 

Social media, law enforcement officers and the First Amendment

Several recent cases address these issues.

 In Rice County Minnesota and Minnesota Public Employees Association, a case arising under the Minnesota Veteran's Preference Act, Arbitrator Jeffrey Jacobs, sitting as Hearing Officer, denied a grievance challenge the demotion of the veteran. The veteran was employed as a Sergeant with the Rice County Sheriff's Department. The demotion to Deputy arose out of certain comments made by the veteran in response to newspaper and social media reports concerning a settlement arising from the shooting of Philando Castile. The statements are summarized in Arbitrator Jacob's award:

On November 28, 2017 the Minneapolis Star and Tribune newspaper ran a story regarding a settlement between the City of St. Anthony Minnesota and Ms. Diamond Reynolds, who was Mr. Castile’s girlfriend and was in the car at the time he was shot and killed by a St. Anthony Police Officer. The story of Mr. Castile’s homicide was widely reported in the print and broadcast media and was widely discussed on social media. There was also a highly publicized trial of the officer who shot Mr. Castile.
There was a claim made by Ms. Reynolds and the matter was settled for a large sum of money. The Star and Tribune story was about that settlement and showed a picture of Ms. Reynolds leaving a building that ran along with the story. In response to that story and on the Star and Tribune’s Twitter page, the veteran posted the following message: “She’ll have that [i.e. the money from the settlement] spent in 6 months on crack cocaine.” There was another post only seconds later that read: “I hope she loses all her State and County Aid now that she has this cash.” This was posted under the veteran’s Twitter handle ... . The evidence also showed that he repeated his earlier comments approximately 20 minutes later with a post at 10:15 p.m. that read as follows: “She needs to come off County and State Aid now that she has some cash. It’ll be gone in 6 months on crack cocaine.” There was no mention in this post either regarding the use of public money or the settlement itself nor of the need to protect the Ms. Reynolds child. It was, as discussed herein, a statement made without knowing Ms. Reynolds and based on assumptions the veteran made regarding her status as a recipient of such aid and her YouTube posts showing her smoking what appears to be a marijuana joint. [footnotes omitted]

Applying the standard imposed by the Act, which Arbitrator Jacobs found equivalent to just cause, the Arbitrator found no basis to upset the Sheriff's decision. In doing so he rejected the veteran's claim that his comments were protected by the First Amendment. Analyzing the case law on the First Amendment rights of public employees, Arbitrator Jacob concluded:

The question is whether his posts were protected by the First Amendment based on this unique record. For all the reasons set forth above, even if one gets to the question of the First Amendment and the balancing test required by Pickering, these posts were not shown to be protected and that they violated clear policies in place.

In Clackamas County Peace Oficers' Association and City of West Linn (in which the remedy issue is discussed above) Arbitrator Lindauer similarly rejected a claim that grievant's Facebook postings were protected by the First Amendment, finding:
In evaluating an individual's free speech rights in the context of employment, theArbitrator must balance the parties' interests relative to the subject speech:

          *** speech that is disruptive of the workplace or demoralizing and reflects the expression of a              private complaint is not protected speech, whereas commenting on a matter of public interest is   protected speech but must be balanced against the government's interest in the effective and efficient  fulfillment of its responsibilities to the public."

                                                                                               Elkouri and Elkouri, 
                                                                                              How Arbitration Works, 
                                                                                               (BNA 8th Ed.) Page 19-3

Police officers, as public employees, are held to an even higher standard. "Public service employees are often held to a higher standard because of the public employer's interest in maintaining the public trust." Id., at 15-17. In their post-hearing briefs, both parties cite case law and other authorities requiring an analysis of whether the employee's interest in the speech outweighs the employer's interests in maintaining efficient operations and its reputation. This is the crux of the First Amendment analysis in this case: Did [grievant's] interests in his Facebook postings outweigh the City's interests in maintaining efficient operations and the public trust? In the Arbitrator's opinion, the answer is no.
In the Arbitrator's opinion, [grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.

In Veronica Cedillo and The City of Mission, Texas, Arbitrator Richard R Brann overturned the indefinite suspension (i.e. termination) of an officer, finding the termination "excessive under the circumstances of her good-faith exercise of her First Amendment Rights and her otherwise exemplary work record." The decision was reported in the progresstimes Arbitrator: Mission shouldn't have fired cop for contacting 'Anonymous' Facebook page

The officer, based on information she had seen in a group message among other officers and a conversation she had had with another officer, and after receiving an assurance that she would remain anonymous, used Facebook Messenger to send a private Facebook message to an entity known as "Anonymous RGV."  The message read:

Well, I just don't wanna get in trouble, but just so y'all know... The current mayor, Beto Salinas was wasted/drunk and crashed inside the city limits...single vehicle accident at about 3am this morning. However, it is unknown if he called the chief of police directly & had the Sgt. take care of it. So, he was allowed to call someone to go pick him up & was not charged/arrested for DWI. He was already picked up, by the time the wrecker arrived at the scene. The officer only did an accident report... which is totally unfair/wrong!!

Despite the assurance of confidentiality, the Mayor learned of the Facebook message and asked the Chef to "check into it." Officer Cedillo was interviewed and acknowledged sending the message.

Officer Cedillo appealed the indefinite suspension that was ultimately imposed, arguing that her reporting of what she believed to be a possible attempt to cover up a criminal violation was a matter of public concern protected by the First Amendment.

Noting that the case was a "challenging" one, Arbitrator Brann analyzed the case in light of prevailing law. He found that the Officer had not used any confidential information in making her claim, that she did not make the report in her official capacity, that while her report did contain some inaccuracies (including the allegation that the Mayor was "wasted/drunk") it was made in good faith. He concluded:

In light of all the evidence, ... the delicate balance required under the Supreme Court's Pickering must be struck in favor of Officer Cedillo. 

Nevertheless, while finding the "gist" of Officer Cedillo's message was protected speech, her hyperbole and statements that went beyond her knowledge justified some penalty. Accordingly he ordered her reinstatement with back pay less a ten day suspension. 

Sunday, October 7, 2018

Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report

The Massachusetts Supreme Judicial Court has rejected a public policy challenge to the reinstatement of a police officer found by an arbitrator to have made "intentionally misleading ...but less than intentionally false" statements in a police report. City of Pittsfield v. Local 447 International Brotherhood of Police Officers.

Grievant had arrested an individual who had been identified by a supermarket's security department as having  engaged in shoplifting. He placed the individual in the back of his cruiser, In his report of the incident, grievant wrote that the individual began trashing about and so "for her safety" he removed her from the vehicle and placed her on the ground to control her. He also noted that store security wanted to get a photo of her as part of its normal process.

In his award, Arbitrator Michael Stutz found that grievant's report was inaccurate and that the three words in issue "for her safety," were "[u]ntrue, intentionally misleading, and cause for discipline, but less than intentionally false."  He concluded that grievant removed the individual from the vehicle to allow store security to photograph her and that his report was not a mistake or an error, but "knowingly inaccurate." He found:

the grievant wanted to conceal the real reason for removing the prisoner by falsely reporting that it was safety-related, and that the reason for this was the public disturbance that resulted when he removed, photographed and returned the prisoner to his car. The grievant should have waited to take the photograph outside public view at the station. He could have gotten assistance from his nearby colleague. I believe the grievant referred to safety to deflect the readers of his report away from his bad judgement. This intentional inaccuracy violated the grievant’s obligation to be absolutely truthful.

Nevertheless, Arbitrator Stutz found termination too severe, and ordered grievant reinstated with a three day suspension.

The City sought to vacate the award, arguing that "any lie, be it big or small, absolutely disqualifies a police officer from continuing to serve in his position, and that any act of dishonesty, no matter the circumstances, requires dismissal."

The Superior Court rejected this request, and the Massachusetts Supreme Judicial Court accepted he case on direct review. The trial court opinion, and the parties briefs before the SJC are discussed at Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?

In its decision, the SJC refused to adopt a bright line rule that any dishonesty by a police officer would compel termination. In doing so it noted grievant's 'intentionally misleading" statements "did not lead to a wrongful arrest or prosecution, or result in any deprivation of liberty or denial of civil rights."

Accepting the arbitrator's factual conclusion that grievant's statement was not made with the intent "to impede, obstruct, or otherwise interfere with any criminal investigation or proceeding," but was instead an effort to avoid discipline for his poor judgment, the Court found no public policy requiring the termination of the grievant. Reinforcing the limited nature of its decision, the Court concluded:

In making these employment decisions, police chiefs who are responsible for maintaining the integrity of their departments and for preserving public trust in their officers need clear lines. It requires commitment and courage for a police chief to terminate the employment of a police officer; it is generally easier to avoid doing so. Termination of an officer's employment means that the police department almost invariably will need to incur the expense of arbitration, including the substantial attorney's fees from litigating such an arbitration. And if the arbitrator disagrees with the decision to terminate, the officer will be reinstated and the police department will be required to make the officer whole with respect to lost benefits under the collective bargaining agreement, including back pay, compensation for lost income from overtime and details, and the return of seniority rights. If there are no clear public policy lines supporting termination, it is extremely difficult for a police chief to risk such a decision where it might be undone by an arbitrator whose decision cannot be reversed by a court even when it is plainly wrong as a matter of fact or as a matter of law.

Where a police chief decides to terminate an officer in circumstances in which the officer's false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy. We affirm the arbitrator's award here only because it did not cross this public policy line.

In a footnote, the Court acknowledged that the local District Attorney had informed the City that he would no longer call grievant as a witness in any criminal matter. Finding this "very troubling" the Court noted that this was not part of either the City's or the arbitrator's decision. It noted further however,

... although it is required to abide by the results of this arbitration, the city is, of course, not prohibited from pursuing any additional appropriate discipline based on the district attorney's letter or any other newly acquired information