Sunday, May 21, 2017

Quick Hits- Police Officers' Bill of Rights, respirator fit tests, and an arbitrator's authority to modify discipline


City's untimely discipline violates Police Officers' Bill of Rights - Reinstatement ordered

Arbitrator Kenneth Starr granted in part a grievance filed by a Naples, FL police officer who had been dismissed for his alleged involvement in the disappearance of another officer's service weapon, and for allegedly telling a security guard that another police officer had been involved in the shooting of that officer's wife (also an officer of the Naples PD) and the shooting death of a third Naples officer. Arbitrator Starr found the first allegation unsupported by the evidence. Concerning the second allegation, the arbitrator concluded that "Taking into account all of the facts and implications contained hereinabove, the arbitrator finds the City was justified in imposing discipline upon Grievant, up to and including, termination."

 Nevertheless, Arbitrator Starr found that the City had violated Florida's Police Officers Bill of Rights, which was incorporated into the cba, by failing to take disciplinary action within 180 days of receiving the allegation underlying the purported grounds for the discipline. He therefore ordered the grievant's reinstatement, but concluded:

However, the arbitrator finds that an award of back pay in this case is inappropriate for several reasons. 20 Grievant in this case bore most, if not all, of the responsibility [for] the problem that resulted in his termination. Additionally, Grievant failed to mitigate his (back pay) damages and, in fact, provided no evidence that he even attempted to find work elsewhere. Accordingly, that portion of the grievance requesting back pay is DENIED in its entirety.
__
20 See: Elkouri & Elkouri, How Arbitration Works, 7th Ed., at CH.18.3A. iii and Ch 18.3.I. (2012)


Arbitrator Starr's award can be found here.

Eighth Circuit: Arbitrator's award reinstating bearded nuclear security officer not barred by public policy

The Eight Circuit has refused to set aside the dismissal of a Nuclear Security Officer who the employer concluded could not pass a required respirator fit test because of facial hair. Entergy Operations, Inc. v. United Government Security Officers of America The employee was called in for an unannounced fit test, but, because he had what was described as a full goatee, the facility concluded that he would be unable to pass the test. It relied on NRC regulations which it asserted required employees to be clean shaven. Arbitrator Robert Curtis sustained the employee's grievance over his dismissal. Arbitrator Curtis' award can be found here. The arbitrator found that by not at least attempting the fit test the facility could not be sure the employee could not successfully pass the test. He also concluded that Entergy failed to reasonably accommodate the grievant, who was suffering from folliculitis, by not assigning him to a post that did not require the use of a respirator/mask. Entergy sought to set aside the award as contrary to public policy (i.e the NRC regulations). The District Court (here) concluded on the record made at the arbitration hearing that  the arbitrator nether exceeded his authority nor acted contrary to public policy. The Court noted the arbitrator's conclusion that by refusing to conduct the fit test unless grievant shaved Entergy failed to establish that grievant's facial hair would improperly interfere with a proper seal. It also agreed with the arbitrator's reasonable accommodation analysis. On the Company's appeal, the Eight Circuit found it unnecessary to decide whether fit testing an individual with facial hair would violate federal regulations in light of the arbitrator's accommodation analysis. The arbitrator's factual findings on the availability of posts not requiring a fit test was supported by the testimony and Entergy's challenge on this point was based on neither the cba nor federal regulations, but rather on Entergy's practice and preference.

Ohio Supreme Court concludes that limitations on an arbitrator's remedial authority must be set forth in the cba

In its recent decision in Ohio Patrolmen's Benevolent Association v. City of Findlay the Ohio Supreme Court addressed the question of whether a police department's disciplinary matrix, not contained in a cba, could restrict an arbitrator's ability to modify discipline as part of a just cause analysis. The matrix provided that if more than one discipline level was indicated, the Chef had sole discretion in determining which of the levels was appropriate in a particular case. The case arose when Arbitrator James Mancini issued an award finding "just cause for severe discipline" but overturning the Chief's termination decision. The City refused to reinstate the grievant, arguing that since the matrix provided for discipline ranging from a 3-10 day suspension up to termination, the decision of the Chief should prevail. The Trial court and the appellate court agreed with the City's position. The Supreme Court, however, concluded:

Although nothing in the CBA precludes the city from using the matrix as a guide in imposing discipline, treating the matrix as binding on the arbitrator would conflict with the just cause requirement for discipline that the city and the OPBA negotiated into the CBA and as in SORTA, would undermine the integrity of the entire collective bargaining process.

Because the parties did not specifically bargain for the matrix and incorporate it into the CBA, Mancini had authority to review the appropriateness of the disciplinary action imposed in this matter and broad authority to fashion a remedy.


Reversing the decision of the lower Court, the Supreme Court held that:

Any limitation on an arbitrator's authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.

Legally Speaking Ohio's preview of the oral argument here contains an analysis of the case and links to the arbitrator's award and the lower courts' opinions.






























Sunday, May 14, 2017

Public policy, police use of force, condonation and the likelihood of recidivism


It took an arbitration, two court decisions and a second arbitration, discussing issues of police use of force, condonation of misconduct, due process, public policy and potential recidivism, but former Des Plaines, IL police officer John Bueno may once again be returning to the force.

Officer Bueno began his employment with the Des Plaines PD in April, 2002. He was considered a hard working officer who received repeated commendations for his performance. He generally received good performance reviews, both before and after the incidents in issue.

In June 2009, he pushed an arrestee who was confined in the station holding cell after hearing the individual make vulgar comments about his daughter. In January 2010 he punched an arrestee in the nose while inside the police station, and in August 2010 he punched a handcuffed prisoner who was seated in the back of his parol car. Grievant did not report the use of force in any of these incidents, as he was required to do by Department policy. Superiors in the Department were aware at least of the later two incidents but took no action.

Almost a year later, in August 2011, the Acting City Manager received letter from an attorney alleging that Bueno had "brutally beaten" prisoners. The Acting Manager subsequently testified that this was the first he became aware of these allegations. He asked the Deputy Chief to conduct an investigation and, following that investigation, the City terminated Bueno's employment in March of 2012. The allegations against Bueno included both the improper use of force and dishonesty during the investigation. The parties agreed to submit the propriety of that termination directly to arbitration, and on May 3, 2013 Arbitrator Peter Feuille issued an award (
here) upholding, in part, the grievance. Arbitrator Feuille concluded that the City had established the improper use of force and that Bueno had not been truthful during the investigation. Nevertheless he found that the City had deprived him of due process by delaying the investigation for so long, and that the Department had condoned the use of force by failing to take any action against Bueno despite knowledge of the incidents. He ordered Bueno's reinstatement without back pay and imposed a three year last chance provision for any future violation of the use of force policy or the Department's truthfulness policy. The award is discussed at Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations

The City sought to vacate the award, claiming that reinstating Bueno despite the findings of improper use force and dishonesty was contrary to public policy. The circuit court agreed and vacated the award. It also denied the Union's request to remand the dispute back to the arbitrator for a factual finding concerning the likelihood that Bueno would reoffend.

The Union appealed, and the Appellate Court concluded that it could not decide the appeal without evidence of "whether Bueno is likely to engage in similar misconduct upon reinstatement." City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240. In reaching this conclusion, the Court first addressed the public policy issue raised by the City. It noted that the Illinois Supreme Court (in AFSCME v. Department of Central Management Services) held that the public policy analysis on a challenge to an arbitration award required a two step process. First, the Court must determine if there is a "well-established and dominant policy implicated by the arbitrator's award."

In this case, the court found that there was:

we find that the arbitration award here implicates a well-defined and dominant public policy, namely, the public policy against police officers unnecessarily using force against prisoners and being dishonest about that use of force during a subsequent investigation.

The second prong then an analysis of "whether the arbitrator's award, as reflected in his interpretation of the agreement, violated the public policy."

Applying that second prong to the case before it, the Appellate Court described the issue as :

whether the arbitrator's award, i.e., reinstatement of Bueno as a police officer under the terms and conditions attached to his reinstatement, resulted in a violation of the established public policy of ensuring that law enforcement officers refrain from using unnecessary or unreasonable force, failing to report such incidents if they occur, and being untruthful during investigations of the incidents.

The court determined that the record, including the arbitrator's award, was devoid of any finding on the "likelihood of recidivism" and that without such a finding it couldn't determine whether reinstatement was contrary to public policy. Accordingly it ordered the remand of the case to the arbitrator an express finding on this question.

Arbitrator James R. Cox (appointed after the death of Arbitrator Fuille) has now concluded that Bueno is unlikely to engage in similar conduct in the future. Arbitrator Cox's award can be found here.

Arbitrator Cox noted that since the incidents in question the apartment has a new Chief. He noted changes in both the environment of the police department and the unlikelihood of future offenses by the grievant:

That conclusion is based not only on the positive recognition of his performance as a Des Plaines Police Officer, but upon Steps the City has taken after the 2011 disclosures of Bueno's misconduct in the [redacted] cases. Those Steps changed his working environment by eliminating the previous climate of condonation within the City of Des Plaines Police Department.
***
John Bueno now knows without question, that the City of Des Plaines and their Police Department do not approve of use of excessive force towards prisoners.


Arbitrator Cox also noted that the last chance provision that was part of Arbitrator Feuille's reinstatement order makes it unlikely that Bueno would engage in similar acts in the future.

According to news reports, while the City has not made a final decision on whether it will appeal the case once again, grievant will likely be returning to the department. Bueno Might Be Back By August.

Sunday, May 7, 2017

DC Circuit panel split on impact of public policy on OIG investigation arbitration award


In National Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Committee, the DC Circuit, over a strong dissent by Judge Pillard, has affirmed the District Court's decision vacating an arbitrator's award that reinstated a member of the Amtrak police department.

The cba between Amtrak and the Union contained a "Police Officer's Bill of Rights" provision. That provision ("Rule 50") required that any officer subject to an investigation be informed of their right to remain silent, the right to delay questioning to have a union representative present, and the recording of the interview with the officer by either mechanical or stenographic means.

After allegations arose that an officer jointly owned a home with her supervisor and received a disproportionate share of premium assignments, Amtrak's Internal Affairs Unit conducted an investigation. The officer was interviewed in compliance with Rule 50. That investigation was closed without discipline (other than a letter of counseling for creating the appearance of impropriety and potential conflict of interest). The Office of Inspector General subsequently conducted its own investigation. The officer was again interviewed, but was not advised of her right to have a union representative present and the interview was not recorded. After receiving the Inspector General's report, which concluded that the officer had made false statements and omissions during the internal affairs investigation and that some of her conduct was potentially criminal, Amtrak terminated the employment of the officer.

The termination was pursued to arbitration, and Arbitrator Joan Parker ordered the officer's reinstatement, concluding that "because the procedural safeguards guaranteed to employees by Rule 50 were not afforded her during the ...Amtrak OIG interrogation" there was not just cause for her discharge. Arbitrator Parker's award can be found here.

Shortly after the arbitrator's award was issued, the DC Circuit issued its decision in U.S. Department of Homeland Security v. Federal Labor Relations Authority holding that "public sector unions and agencies can neither add to nor subtract from the OIG's investigators authority through collective bargaining." 


Amtrak sought to vacate the arbitrator's award. The District Court granted that request (
here), concluding that the award was contrary to public policy. The Court held that the Circuit court's decision in the Department of Homeland Security case:

... makes clear that the IG Act's public policy of Inspector General independence would be violated if CBAs could restrict an Inspector General's investigative authority. Because the Arbitrator's Decision would subject the Amtrak OIG's investigative powers to limitations contained in a CBA — not a statute — there is no question that the Decision is contrary to the public policy underlying the IG Act. Thus, the Arbitrator's Decision cannot stand.

The Court denied the Union's Motion for For Reconsideration (here), and the Union appealed.

The Circuit court, in a 2-1 decision, has affirmed. The majority determined that the Court's previous decision in Department of Homeland Security "is directly on point." The Court noted that the Arbitrator explicitly based her decision on the OIG's failure to observe the provisions of Rule 50 and held:

It makes no difference that DHS was decided after the arbitration award. ... That collective bargaining agreements may not regulate an Inspector General's investigatory authority has been the law for decades, as the Fourth Circuit's 1994 decision in Nuclear Regulatory Commission v. FLRA shows. ... A federal court, reviewing an arbitration award, "may refuse to enforce contracts that violate law or public policy." United Paperworkers, 484 U.S. at 42 (citing Hurd, 334 U.S. at 35). Rule 50, as applied to the Amtrak Inspector General, is such a contractual provision and the district court was right in refusing to enforce the arbitrator's award based on that provision.

The dissent, noting the "extremely narrow" scope of review of arbitration awards, would confirm the award. Judge Pillard noted that while the arbitrator did not anticipate the Circuit's subsequent Homeland Security decision, nothing in the arbitrator's reasoning, i.e. that the employee was dismissed without appropriate procedural objections, compeled any violation of public policy. Contrary to the majority's public policy analysis, Judge Pillard concluded:

The court's decision to vacate the arbitral award in this case contradicts decades of precedent delineating a narrow public policy exception and threatens as a practical matter to destabilize many, if not most, arbitral awards. Indeed, its impact may well reach beyond labor arbitration to commercial arbitration under the Federal Arbitration Act, as "[t]here is no doubt that the scope of review of arbitration in cases involving mandatory arbitration of statutory claims is at least as great as the judicial review available in the context of collective bargaining." Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1486 (D.C. Cir. 1997) (emphasis omitted). Today's decision invites litigation in every case in which a disappointed party to an arbitration can base its objection on some claim of error that places the award at odds with "law or public policy." Once arbitration becomes the start rather than the end of the dispute resolution process, it no longer serves the role Congress envisioned. Because I do not see how, consistent with binding precedent, the court can relieve Amtrak of its obligation to comply with its collective bargaining agreement and the arbitral awards rendered thereunder, I respectfully dissent.





Sunday, April 30, 2017

Quick Hits - DC Metro, evidence in arbitration, school principals and police officers


DC Metro unsuccessful in effort to vacate arbitrator's award

The US District Court in DC has upheld an arbitrator's award reinstating an employee alleged to have misrepresented maintenance work on Metrorail tunnel fans.  The alleged misrepresentation was discovered during an investigation of  an unrelated electrical malfunction that caused a tunnel to fill with smoke, resulting in the death of a passenger. The employee was terminated  for allegedly falsifying maintenance records of "safety critical" equipment, and being untruthful during investigative interviews. Arbitrator Ezio Borchini converted grievant's termination to a 180 day suspension. The arbitrator concluded that the evidence showed  "systemic maintenance practices which tend toward mitigation of discipline." These practices included the Authority's acceptance of preventive maintenance reports which were blank on the issue of local and remote fan testing. The Authority's effort to vacate the award has been denied by the Court. Contrary to the Authority's arguments, the Court found nothing contrary to the cba in the Arbitrator's just cause analysis. Rejecting the Authority's claim that it had the reserved right to terminate employees for egregious misconduct the Court noted:

If WMATA is correct that running a safe metro requires unfettered discretion to fire employees when they breach cardinal safety protocols, its remedy lies in negotiations over a new CBA with the Union for such authority. That, however, is not what it appears to have bargained for under the current one.

The Court also rejected  claims that the award was contrary to public policy and was arbitrary and capricious. 

Arbitrator Borchini's award can be found here. The Court's decision here.

NJ Court rejects claim arbitrator disregarded his own evidentiary rulings, depriving employer of fair hearing

Grievant was a nurse at a psychiatric unit of an acute care hospital. During her shift, one of the patients sexually assaulted another. The hospital alleged that grievant's  negligence  allowed the assault to take place and terminated her employment. That action was grieved and submitted to Arbitrator Jack Tillem for resolution. Arbitrator Tillem reduced the termination to a suspension and ordered the grievant's reinstatement without back pay. Arbitrator Tillem's award can be found here. The hospital sought to vacate the award, arguing that the arbitrator had ignored his own prior rulings excluding certain evidence, and that his award was in manifest disregard of the law. The Court denied the Hospital's request, noting that it "has not met the 'exacting' burden required to vacate an arbitration award under either of its two separate theories." With regard to the claim that the award was in manifest disregard of the law, the Court noted that it remained an open question whether this was still a viable basis to set aside an arbitrator's award, but even if it was, the arbitrator's claimed error in relaying on purportedly excluded evidence did not rise to the level of "manifest disregard."
The Court's opinion can be found here.

Pa Court confirms arbitrator awards reinstating school principals

   The Pennsylvania Commonwealth Court, here and here, has overturned lower court decisions vacating arbitrators' awards reinstating school principals accused of involvement in a cheating scandal. Both principals were dismissed after an investigation revealed a significant number of "beneficial erasures" on student standardized tests. The investigation concluded that school employees had altered the tests to improve student scores. In both cases arbitrators found insufficient evidence that the principals had participated in the cheating but concluded that they had been negligent in allowing it to take place. They overturned the terminations and substituted suspensions.  The School District sought to vacate the awards, claiming that the arbitrators had improperly modified the discipline imposed, and that the awards were contrary to public policy. The Commonwealth Court, overturning trial court decisions, rejected both contentions. The Court  concluded that the arbitrators acted well within their authority in modifying the discipline in light of their factfinding, and that the misconduct found, i.e. negligence, did not require termination as a matter of public policy.

San Antonio PD officer dismissed for offering to fight handcuffed prisoner reinstated

A San Antonio police officer who uncuffed a belligerent prisoner and offered to fight him "one on one" was reinstated by Arbitrator Lynne Gomez. The officer had been indefinitely suspended following the incident. The Chief believed the officer was still subject to a last chance agreement because of an earlier episode, and relied on that, in part, in concluding that dismissal was appropriate.
Arbitrator Gomez agreed with the Union that the Last Chance Agreement had expired prior to the current incident and that, without that, the facts did not support just cause for termination. The Arbitrator noted that no fight actually took place, that prior to the uncuffing the officer had made repeated attempts to pacify the individual (a fact of which the Chief was not aware) and that because of the erroneous reliance on the last chance agreement appropriate progressive discipline was not considered. KSAT reports on the award (SAPD officer appeals termination, wins job back through arbitration) and the arbitrator's award can be found here.

Sunday, April 23, 2017

Court rejects arbitrator's past practice analysis, denies claim for commuting benefit

The NJ Appellate Division has upheld a lower court decision vacating an arbitrator's award, finding the arbitrator's analysis "illogical" and in excess of his authority.  In  State of NJ (Division of State Police) v. State Troopers Fraternal Association the Court rejected the Union's efforts to confirm an award ordering the State to reimburse State Troopers for commuting expenses incurred on the state's toll roads.

The Court noted that the essential facts were undisputed:

...they can be summarized briefly. For many years, the New jersey Turnpike Authority and the South Jersey Transportation Authority - independent authorities that operate theState's major toll roads - allowed State Troopers to travel over those roads in their personal vehicles without paying tolls. As a result, the Troopers were able to commute to and from work without incurring that expense.

In November 2010, the two authorities notified the Division of State Police that they would no longer provide toll-free passage to Troopers commuting to and from work. When the Division declined to reimburse Troopers for the toll-related commuting expenses, the Troopers Association filed a grievance challenging what it described as the "unilateral suspension of non-revenue toll road passage." The Union alleged that the Division's refusal breached the maintenance of benefits provision of its cba. 


The arbitrator sustained the grievance, concluding that the provision of toll-free passage was a benefit of a type that was negotiable and that reimbursement had become an established past practice. The Division sought to vacate the award, and the superior court granted that request. The court found that the arbitrator exceeded his authority and made a mistake of law by reading into the cba a term not found there and that the award was not a "reasonably debatable" interpretation of the contract. 


On the Union's appeal, the Appellate Division affirmed. It noted:


...the arbitrator's discussion of the third-party nature of the benefit was illogical. Under the stipulated facts, the privilege of toll-free commutation was a gratuitous benefit provided by the Authorities, and not a benefit provided by, agreed to, or controlled by the Division. The toll-free arrangement was a "past practice" between the Authorities and the Troopers, not between the Troopers and the Division. 

The Court found further that toll-free commutation was never a benefit actually provided by the Division, either directly or by agreement with the Authorities, and was therefore not covered by the maintenance of benefits provision.  



Sunday, April 9, 2017

Arbitrator rejects termination for use of excessive force, finds disparate treatment


Arbitrator Richard Miller has modified the termination of a police officer for the City of St. Paul, MN. The officer had been dismissed for what the City believed to be the excessive use of force.

On the evening of June 24, 2016, the officer and his partner were on patrol when they arrived on the scene of a reported fight involving a least one individual who was alleged to have a weapon. After conducting an initial investigation, the two received a radio transmission from the Department's K-9 officer who informed them that he had located an individual matching the reported description. Before grievant's arrival, the K-9 officer had released his dog on the individual. When grievant arrived on the scene the dog had the suspect on the ground, dragging him in circles on the pavement. Grievant, believing the suspect noncompliant with the officers instructions, and concerned that he had a weapon, administered two standing kicks to the suspect's midsection. After 14 seconds, believing the suspect was still not complying, the officer kicked him again. Grievant directed the kicks to the midsection because he did not want to accidentally kick the dog, and because he wanted to avoid kicking the suspect in the head, which would have been considered deadly force. After he was subdued, the suspect was transported to the hospital where an examination showed he had rib fractures on both sides and a collapsed lung. He did not have a weapon.

The new police chief, who had assumed that position on June 23rd,  learned of the incident from a local representative of the NAACP and ordered an investigation. Following the investigation the Chief disciplined both grievant and the K-9 officer. The Chief offered the K-9 officer a 30 day suspension in lieu of termination if he agreed not to contest the suspension. Grievant was offered no such option and his employment was terminated. That termination was grieved and ultimately submitted to Arbitrator Miller for resolution.

Arbitrator Miller converted the termination to a thirty day suspension. He found that grievant's act of kicking the suspect was not expressly prohibited by the Department's policy and was not contrary to the training grievant had received. He also noted that grievant had been faced with "a tense, uncertain and rapidly evolving situation involving an uncooperative witness."  Finally, he noted the disparity between the discipline imposed on grievant and that imposed on the K-9 officer:

It is difficult to believe that being dragged on the pavement in circles by a K-9 who is biting your leg is less traumatic and painful than being kicked in the torso three times. Thus, whether or not the Grievant's misconduct was more or less egregious than the misconduct of [the K-9 officer] misses the point. Both their actions were egregious and not distinguishable to warrant one receiving 30-day suspension and the other termination. They both deserve to be penalized for their actions, but the penalty should be the same for their misconduct.

Observing that the Police Civilian Internal Affairs Review Commission had initially recommended a thirty day suspension for grievant, Arbitrator Miller overturned the termination and reduced the suspension to the recommended thirty days.

Arbitrator Miller's award can be found here.

Sunday, February 26, 2017

Arbitrators exceeding their powers - three courts reverse

Arbitrator ignored limitations in cba

The cba between CenterPoint Energy and the Gas Workers sets forth several offenses which provide "absolute causes" for discharge and limit an arbitrator to the question of whether the employee, in fact, committed the offense. 

An employee was dismissed for allegedly "falsifying time sheets and neglect of duty," both of which are among the "absolute cause" offenses. The dispute about the dismissal was submitted to arbitrator Richard Miller for resolution. In his award, Arbitrator Miller found that the Company had established that grievant had engaged in the conduct alleged on some, but not all, of the dates in question. Nevertheless, he concluded that the Company did not have just cause for the dismissal. Rejecting the Company's reliance on the "absolute cause" language, the Arbitrator concluded that he was still free to modify the discipline.  He held:

To interpret Article 26 in any other manner would violate all of the basic notions fairness and due process firmly established in the history of industrial relations and implicit in Article 26, which also includes a just cause standard for discipline and discharge.

Arbitrator  Miller converted the discipline to a suspension without back pay and ordered the grievant's reinstatement.


CenterPoint sought to vacate the award, claiming that the arbitrator exceeded his authority by ignoring the explicit language of the contract. The District Court agreed. It found:

The Arbitrator here acted outside the scope of his authority by disregarding the plain language of the CBA.
...

This provision clearly and unambiguously limits the arbitrator's authority to determining whether an employee is guilty of the facts constituting any of the four absolute causes. Once the arbitrator makes that determination, the arbitrator's authority ceases and he can no longer fashion a remedy he believes is appropriate given the circumstances. 

Accordingly the Court vacated the award.


Arbitrator altered the charges against  a teacher and then found charge unsupported


  The NJ Supreme Court in Bound Brook Bd of Education v. Ciripompa overturned an award of Arbitrator Michael J. Pecklers in a teacher tenure proceeding. 



 Two counts of tenure charges had been brought against the teacher for unbecoming conduct. The first related to claims that the teacher had used his employer issued laptop to send nude pictures of himself and to solicit similar pictures from women on the internet. Count II alleged that he had engaged in inappropriate conduct towards female staff members and made comments about their dress and physical appearence. The tenure charges were submitted to Arbitrator Pecklers for resolution. Arbitrator Pecklers found that the Board proved the allegations of Count I. With regard to Count II,  he noted that while the Count did not specifically allege sexual harassment, in light of the evidence this was the substance of the allegation. He then considered the evidence in light of the NJ Supreme Court's decision in Lehmann v. Toys 'R' Us, Inc, a case interpreting the NJ Law Against Discrimination, and found that the evidence did not support a finding of a hostile work environment.  In view of his findings regarding Count I and his dismissal of Count II the arbitrator converted the dismissal to a 120 days suspension. 

On the School District's appeal, the case was ultimately appealed to the N.J. Supreme Court.  Describing the issue before it, the Court wrote:

 In this case we determine whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. We find that he did.

The Court determined that the Arbitrator erred in essentially modifying the allegations in Count II from unbecoming conduct to sexual harassment, noting 

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator "imperfectly executed" his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context

The Court ordered the dispute remanded to a different arbitrator to decide the question of whether the teacher committed unbecoming conduct and the appropriate penalty if he did so. 

Arbitrator improperly ordered University to award tenure

The District Court of Appeal in Florida found that an arbitrator erred in ordering Florida Atlantic University to award tenure to a professor. The arbitrator found that the University relied on improper criteria in its decision to deny tenure and ordered the school to follow the established criteria and  grant the professor's application for promotion and tenure. A lower court  found that the arbitrator exceeded his authority in awarding tenure, but ordered the school to provide grievant with an additional year of employment during which she could reapply for tenure. The Court of Appeal in Nash v. Florida Atlantic University found both the arbitrator and the lower court erred.  It held:


...the arbitrator exceeded his authority in directing the University to grant Nash a promotion and tenure. Although the parties stipulated that the arbitrator would determine "the appropriate remedy" for a breach of the CBA, the parties did not expressly place before the arbitrator the issue of whether Nash should have been granted promotion and tenure. Rather, the issue was whether the University had violated the CBA's procedure for determining an application for tenure and promotion. It is clear to us that once the arbitrator found the University violated the procedure by not relying on established criteria, "the appropriate remedy" was for the arbitrator to direct the University to review Nash's application using the correct criteria.


The court also rejected the lower court's order of an additional year of employment, concluding that the lower court should have directed the University to review grievant's application using the correct criteria.