Sunday, October 23, 2016

Arbitrator's duty to disclose and evident partiality

The City of Mason, Ohio and the Mason Professional Firefighters Union were parties to a dispute about the termination of a bargaining unit employee. After the arbitrator initially selected disclosed a potential conflict of interest, the parties selected another arbitrator from a list provided by FMCS.  The parties selected arbitrator Howard Tolley. Following a hearing Arbitrator Holly upheld the Union's grievance and ordered the reinstatement of the grievant with back pay. He found that the City failed to conduct a fair, objective investigation and that it lacked substantial evidence of guilt. Together with his award, Arbitrator Tolley submitted an invoice. The signature block on the invoice identified him as the Executive Director of Unitarian Universalist Justice Ohio. The City maintained that this was the first time it became aware of the arbitrator's position with the organization which, according to its mission statement, "organized justice seekers statewide to promote  education, service, and advocacy consistent with Unitarian Universalist liberal religious principles and to witness with and on behalf of marginalized groups and individuals."

The City sought to set aside the award, arguing that the arbitrator had failed to disclose his employment with UUJO, that he was not qualified under the terms of the cba, and that it would not have selected him had it know of his position with the organization. The City claimed that these facts supported a claim of evident partiality, a basis to set aside the award. The magistrate hearing the City's motion denied the request to vacate, and the City's objections to that decision were overruled by the trial court.

On the City's appeal, the Court of Appeals of Ohio reversed.  Relying in part on what it described as the seminal case on the issue of undisclosed background information (Commonwealth Coatings Corp. v. Continental Das. Co.) the  Court held

Based on our review, we find the facts and circumstances in the present case depart from normal procedures of arbitration significantly enough to find evident partiality. The record in this case establishes that Tolley's involvement with UUJO is not indirect or trivial in the sense that he was an arms-length member of an organization supporting some social justice positions.

The record further supports the city's position that they were prejudiced by the nondisclosure of this information. While UUJO aligns itself with many issues and causes, the record before the court does indicate the support of a number of positions that would be unacceptable to a party representing the management side of an arbitration decision. [footnote omitted]

Accordingly the Court vacated the award.

The Court's decision in City of Mason v. Mason Professional Firefighters can be found here.

Sunday, October 16, 2016

"Union member-union" privilege, grievance time limits - two recent cases

Mass. SJC rejects union privilege

In Chadwick v. Duxbury Public Schools, the Massachusetts Supreme Judicial Court has rejected an effort to have the country recognize a "union member - union privilege,"  at least beyond the labor dispute setting. Plaintiff, a union represented teacher, and a former local union president, sued her employer alleging discrimination and retaliation. When the School sought discovery, plaintiff objected to several of the requests, asserting that any discussions or communications she may have had with her Union were covered by a union member - union privilege. The trial court rejected plaintiff's privilege claim. The SJC has now decided what it described as an issue of first impression, i.e.

whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. 

Affirming the lower court's decision, the SJC declined to create such a privilege. Initially it found that nothing in the statutory language granting public employees the right to bargain over wages, hours and terms and conditions of employment implied such a privilege in the context of a civil action not directly connected to the collective bargaining context. 

The Court also found no basis to create such a privilege as a matter of common law. Declining to adopt the reasoning of the Alaska Supreme Court in Petersen v. State (discussed herethe Court observed that the creation of such a privilege was best left to the legislature. 

Maine Supreme Court - Arbitrator improperly ignored time limits on grievance processing

The Maine Supreme Court in  State v. Maine State Employees Association, SEIU Local 1989 reversed a lower court ruling and concluded that an arbitrator had exceeded her authority by deciding a case appealed to arbitration beyond the deadline established by the cba. 

The applicable contract called for requests for arbitration to be submitted within 15 days of receipt of the Step 3 decision. Because of the absence of two employees who normally handled these appeals, the Union requested a "break" from the employer on enforcement of timelines.  The employer responded:

Of course we will work with you/MSEA while the Member Support Specialists are out. I will notify everyone in this office and the Department HR directors that we are waiving time requirements form[sic] 8/27 through 9/13.
Let's plan to pick up the timelines on Monday 9/16. We can touch base later if this needs to change.

The Step 3 decision in this case was received on August 29. The appeal to arbitration was submitted  on October 22, more than fifteen work days beyond September 16. 

The employer challenged the appeal as untimely, but the arbitrator concluded that the employers response was not "so exact or precise" as evidenced by its commitment to touch base later if needed, and that it would be unfair to the grievant to deny her a hearing based on the actions of a temporary employee unfamiliar with the process. The arbitrator then proceeded to the merits, reducing grievant's termination  to a written reprimand. 

The State sought to vacate the award, but the lower court refused. On the State's appeal, the Supreme Court concluded: 

By attributing to the State an agreement to waive deadlines beyond the date to which it in fact consented, and then enforcing a waiver that is necessarily deficient under the CBA, the arbitrator, in effect, re-wrote the terms of the CBA. Instead, under any "rational construction" of the CBA, ..., MSEA's Step 4 arbitration request on behalf of [grievant] cannot be viewed as timely. Because the arbitrator's contrary determination represents a "manifest disregard" of the CBA, the arbitrator exceeded her powers and—reasoning that it would be unacceptable" if [grievant] were denied an arbitration hearing under the circumstances presented here—imposed her "own individual concept of justice." 

The Court remanded the case for entry of a judgment vacating the award. 

The issue of timeliness in grievance processing is also discussed here and here.

Sunday, October 2, 2016

Officer involved shooting - Arbitrator orders "second chance" for dismissed officer

On March 7, 2013 El Paso police received a call about a domestic disturbance. The individual who was the subject of the call (Daniel S.) was no longer on the scene but witnesses reported that he had burned his mother's dogs, cut another one and threatened to kill his brother. A few hours later he was the subject of another call when he was reported to be violently menacing staff and customers at a local convenience store. Police arrived on the scene and transported his to a nearby hospital where he assaulted several staff and patients, and punched an El Paso police officer in the face. The officer fired five Taser cycles with little effect. Eventually he was subdued with the assistance of hospital personal. He was then transported to the police substation.

Grievant was coming on duty at the substation and volunteered to take the individual to the County Jail. According to grievant and others, Daniel S. had the physique of a professional body builder and appeared to be "on something." Grievant was assisted with the transport by a civilian employee of a contractor. This was pursuant to a new program designed to free police officers for other assignments. During the transport Daniel S. would cycle between periods of docility and combativeness. He would go limp, requiring Grievant and the contractor to carry him for significant distances. Upon the approach to the jail, Daniel S. deliberately smacked his head against the door causing a bloody wound. Because of the wound, jail personnel refused to accept him, requiring grievant to take the prisoner to another facility for treatment. The prisoner became combative again as they were exiting the jail. The departure was recorded on the jail's video, but the interpretation of the events was subject to dispute. What was undisputed was that the officer and the contractor struggled with the prisoner, with the officer ultimately pulling his weapon. While there was some uncertainty concerning whether the officer intended to shoot or whether his hand was struck causing an accidental discharge, the prisoner was fatally shot. An investigation ensued, and the officer's employment was ultimately terminated. The Notice of Termination contained two primary allegations. The first alleged that the officer had violated the Department's policy with respect to the use and application of deadly force, and the second alleged that he had misrepresented the facts concerning whether the shooting was accidental or intentional.

After a criminal investigation resulted in no charges being filed, the grievance proceeded to arbitration before Arbitrator Mark Sherman.

After a detailed review of the evidence, and the conflicting positions of the parties, Arbitrator Sherman ordered the grievant reinstated without back pay. While noting the severity of law enforcement's excessive use of force, and his own prior cases generally upholding termination where excessive use of force was involved, Arbitrator Sherman found several mitigating factors in this case.

Initially, the Arbitrator found that the City had not established that grievant intended to deceive. Rather, he concluded that any discrepancies in his account resulted from the initial shock of the incident and gradual but incomplete efforts to recall details. He also found that deficiencies in the investigation of the incident led to a disjointed effort to gather a complete statement from grievant.

Turning to the use of force issue, Arbitrator Sherman noted that a lack of coordination between the City, the Union and the District Attorney's office led to grievant's actions being portrayed "in the worst possible light by the media." He also found that the newly instituted policy of civilian transport of prisoner exacerbated the situation, noting:

[Grievant] was assigned to transport a violent and highly dangerous prisoner with only a 23-year-old, unarmed security guard to assist him. While his contracted “off -sider”certainly did his valiant best to assist [Grievant], the unarmed young man had never been through any police academy nor was he physically or mentally equipped to deal with the dangerous situation that confronted him on the day in question. For all intents and purposes, therefore, the Grievant was pretty much on his own in his effort to transport a powerful and seriously deranged hulk of a man.

Nevertheless, Arbitrator Sherman found that grievant was not without fault:

In the final analysis, there were a couple of key opportunities for the Grievant to seek help before things got out of hand while he was on his way out of the sally port. Ultimately, he should  have never put himself in the position where he had to draw his gun in an effort to intimidate Mr.S[...]. He should have never put himself in the position where he had to breach the Use of Force policy in a last desperate attempt to control the situation. But most critically, he should have never drawn his weapon in such close proximity to Mr. S[...], knowing intuitively and through training that an unexpected and violent movement could cause his gun to accidentally discharge. (After viewing the sally port video nearly 50 times the Arbitrator reached the firm conclusion that this is precisely what happened.) In summary, despite the fact he was let down by both the Department and the County Jail staff, he still bears the brunt of the responsibility for the accidental death of Mr. S[...].

Accordingly, Arbitrator Sherman concluded  that he would serve "his customary role of scapegoat and reviled 'decider' of the controversial, by choosing to give an officer a second chance." He ordered the City to reinstate grievant, without back pay, and subject to a fitness for duty exam and whatever additional training the Chief might require. 

Arbitrator Sherman's award can be found here.

Sunday, September 25, 2016

Quick Hits - Retiree health, Military leave, Teacher tenure, In the news

Honeywell not obligated to arbitrate termination of retiree health benefits

After Honeywell announced that it would terminate retired employees medical and prescription drug coverage, a group of retirees filed a multi-count complaint challenging that action. One of the counts sought to compel Honeywell to arbitrate their claim that the Company's action breached the applicable cba. The District Court for the Southern District of Ohio rejected this claim. It noted that the cba limited arbitration to disputes between the Company and the Union, not individual retirees. It also rejected plaintiffs claim that they were entitled to arbitrate the issue as third part beneficiaries to the contract, finding that to the extent that Plaintiffs are seeking to enforce promised made in  the CBA, they are bound by all of its terms, including the scope of the arbitration provisions. Fletcher et al v. Honeywell International, Inc.

Military leave, past practice and arbitrability

The Ohio Court of Appeals, reversing a lower court decision, found that an arbitrator did not exceed his authority when he concluded that the State breached its cba by unilaterally ceasing payment for travel and rest time related to military leave. The lower court found that the cba did not contain a definition of military leave and concluded that the arbitrator had exceeded his authority by independendly construing the term. The Court of Appeals, however, concluded that the arbitrator was authorized to interpreted that term as used in the cba in light of the past practice of the parties. State of Ohio v. Ohio Civil Service Employees Association, Local 11 AFSCME

Unsworn student statements, without testimony, insufficient to support teacher tenure charges

Arbitrator Edmund Gerber rejected teacher tenure charges accusing a teacher of improperly providing answers during a student assessment test. The Schools District's evidence consisted of the unsworn statements of 27 students, none of whom were called to testify. Arbitrator Gerber dismissed the charges at the conclusion of the School District's case, finding that this hearsay evidence was insufficient to support the charges. In the Matter of the tenure hearing of Michelle Gates, State-Operated School District of the City of Paterson

Labor Arbitration in the news 

Arbitrator rules Buffalo School Board can’t get rid of cosmetic surgery rider without negotiations

North Jersey teacher should be fired for bullying students, arbitrator rules

NALC: National-level arbitration case decided on ‘Work and Time Standards Video Recording’

Judge orders ex-cop's reinstatement

Arbitrator Rules Against Itasca County Sheriff's Department

Sunday, September 18, 2016

Eleventh Circuit: Presumption of interpretation versus modification of cba supports arbitrator's award-effort to vacate denied

Shaw Environmental was a government contractor on a military facility. The cba between Shaw and the Wiregrass Metal Trades Council called for the termination of an employee for "Possessing ... Government property without authorization."

A bargaining unit employee was dismissed after he gave a plasma cutter to an auto parts store in payment of a bill. The employee claimed that the equipment had been left with him for temporary storage by an individual who failed to retrieve it after several requests to do so. While there was some dispute about how the employee had acquired the plasma cutter his employment was terminated when it was established that the equipment was government property. The termination was grieved, and the dispute was submitted to Arbitrator Carol M. Hoffman for resolution.

Grievant claimed that he was not aware that the equipment was government property. Shaw maintained that proof of actual knowledge was irrelevant, that the offense occurred upon "possession" without authorization without regard to actual knowledge of ownership.

Arbitrator Hoffman sustained the grievance (here). She accepted grievant's testimony that he was not aware that the property in issue was government owned. She concluded:

...grievant's demeanor at the hearing evidenced an unawareness of the fact that the plasma cutter was stolen or that it was property belonging to the government at the time Justin Griffin brought it to grievant's home. Grievant cannot be said to have violated a policy prohibiting possession of government property when he did not know the property belonged to the government or that it had been stolen.

Separately, Arbitrator Hoffman faulted the Company for failing to conduct its own investigation, relying instead on the investigation performed by the military police.

Shaw sought to vacate the award. It claimed that the arbitrator had exceeded her authority by improperly adding a "knowledge" element to the offense. The District Court (here) agreed with Shaw and vacated the award. It found:

While the parties expressly bargained for an arbitrator to be given the authority to interpret and apply the CBA and ultimately issue final and binding determinations, they did so with the understanding that the arbitrator would not “change, alter, amend, modify” or add to the other provisions bargained for in the CBA. And as the Magistrate Judge properly recognized, “[i]t is an unobjectionable principle that an employer can bargain to have included in a collective bargaining agreement a provision to the effect that certain identified types of employee conduct always provide just cause for discharge.” ... Here, the CBA contained just such a provision, whereby both parties agreed that the “possessing, taking, removing, using, destroying, or tampering with Company or Government property without proper authority” would constitute just cause for termination. ... Wiregrass could have negotiated “knowingly” possessing into the contract, but did not. The arbitrator exceeded her authority by adding it to the CBA.

The Metal Trades Council appealed, and the Eleventh Circuit has now reversed (here), effectively confirming the award. The Court noted two principles defining the scope of an arbitrator's authority. The first is that the court must defer "entirely" to the arbitrator's interpretation of the contract, no matter how wrong it may believe that interpretation to be. The second is that an arbitrator may not ignore the plain language of the contract. The issue, therefore, is whether the arbitrator interpreted the contract or, instead, modified it by ignoring relevant language.

In this case, it was undisputed that the policy in issue was silent on the question of whether an employee must know that the property in question was government owned to be subject to termination. The parties disagreed, however, on the effect of that silence. The Court summarized the conflicting positions:

Shaw contends that the policy's silence renders it unambiguous and impervious to interpretation. According to Shaw, the policy's failure to say anything about a knowledge requirement definitively shows that the parties did not intend any such requirement, but instead intended for the possession of government property without proper authority to be a strict liability offense. The Union, on the other hand, contends that the policy's silence renders it open to interpretation, allowing the arbitrator to read into it (or infer from it) a knowledge requirement.

The Court noted that the language would have been clearer if it had provided that the possession of government property without authorization was a terminable offense whether or not the employee had knowledge that the property belonged to the government, or, in contrast, if it provided that an employee would be in violation of the policy only  if he "knowingly possessed government property without authorization." Since it did neither, however, the language used was subject to interpretation

The next question, according to the Court, was whether the arbitrator had in fact interpreted the language. To resolve that question an analysis of the arbitrator's reasoning is called for. Here, however, the arbitrator failed to expressly articulate a rationale from which that analysis could be performed. According to the Court:...

... there is no indication that her imposition of the knowledge requirement resulted from interpretation of the agreement instead of her own view of right and wrong. She did not characterize her task as one of interpretation. She did not describe the plain meaning of the terms in the policy. She did not invoke canons of construction. She did not look to extrinsic aids to find the parties' intent. She did not explicitly do any of the things that we ordinarily associate with an interpretive effort. But that does not mean that she failed to do some of them implicitly — in her head instead of on the page.

Given that the state of the record could support either alternative, i.e interpretation or modification, the Court concluded that, "unlike Buridan's ass" it could make a decision between the two equally plausible choices. Relying on the Supreme Court's decision in United Steelworkers of America v. Enterprise Wheel & Car Corp., the Court held that unless it was "apparent" that the arbitrator had exceeded her authority the award should be confirmed.  This rule, observed the Court, reflected the strong, although not irrebuttable, presumption that the arbitrator interpreted the agreement rather than modifying it. The Court noted:

The Enterprise Wheel presumption, which we apply today, helps keep the promise of arbitration. By presuming, in the absence of evidence to the contrary, that an arbitrator's award rested on an interpretation and not a modification of an agreement, we discourage parties from trying to snatch court victories from the jaws of arbitration defeats.

Sunday, September 11, 2016

Employee suspended and forgotten- Arbitrator orders reinstatement

Grievant was employed as an Investigator by the State of New York-Office of Medicaid Inspector General. In October of 2012 he was suspected of emailing to his personal email address, and to the Comptroller of Albany County, files containing sensitive information, including personally identifiable information and health data. The Office's First Deputy performed a search of emails sent from grievant's computer and confirmed that emails were sent to an unencrypted account and to a person not authorized to receive the data. Based on this information grievant was suspended with pay and escorted from the building. According to the arbitrator there was some question concerning whether grievant was informed of the charges against him and it was "unclear" if any further investigation was conducted between October 19, 2012 and April of 2015.

On April 24, 2015 (after an inquiry by grievant's attorney to the Attorney General concerning his status) grievant was interviewed about the transmission of information protected by HIPAA sent to himself and the Comptroller in 2012. Two months later, the Office issued a Notice of Discipline asserting that the transmission of these emails constituted misconduct and converted his suspension to unpaid status. His union (Public Employees Federation) demanded arbitration, and the case was submitted to Arbitrator Ira Lobel for resolution.

Arbitrator Lobel agreed with the State that the one year limitation on the imposition of discipline did not apply because the matter fell within the contract’s exception for conduct which might constitute a crime.

Nevertheless he found that the State had simply waited too long to impose discipline:

In this case, OMIG knew about the alleged misconduct in October, 2012, when it placed [grievant] on his paid leave. It did nothing to further investigate; its referral to the appropriate State or Federal agencies was minimal at best. Based on the testimony it appears OMIG simply placed [grievant] on leave and forgot about him. When it filed the NOD, it was over two and a half years after the initial suspension. This is simply too long a period to keep any employee in an uncertain situation, with no knowledge of the charges against him. Even though [grievant] was on a paid suspension, he had legitimate concerns regarding his status that an employer should be obligated to address.

While he considered grievant’s conduct “problematic” and a technical violation of HIPAA rules. Arbitrator Lobel dismissed the charges against grievant as untimely.

Arbitrator Lobel's award can be found here.

Sunday, September 4, 2016

Police officers exchange of racially derogatory text messages found sufficient cause for dismissal

Four officers of the Ft Lauderdale Police Department were investigated for exchanging racially charged text messages and at least one video. The messages were brought to the attention of the Department by the former fiancée of one of the officers. The former fiancée had access to the messages during the relationship and preserved copies them. Several of the messages contained disparaging racial references, including repeated use of the "N" word. The messages also contained disparaging references to other officers and the efficiency of the Department. Following the investigation one of the officers (the creator of the video) resigned and the remaining three were dismissed. One did not challenge the dismissal. Two pursued their discipline separately before Arbitrators Carey M. Fisher and James Reynolds. Both arbitrators denied the grievances and upheld the terminations.

Both arbitrators rejected the officers claims that the messages had been improperly obtained or were protected by the First Amendment. On the merits, both found the evidence supported the Department's charge that each officer had engaged in "conduct unbecoming" and conduct "prejudicial to the good order of the Department."

Concerning the use of the "N" word, Arbitrator Fischer observed:

[Grievant] argues that it is merely that – a word, the meaning and import of which is dependent on the context and thought process of both the speaker and the listener, or in this case, the author and recipient. He denied any intent to denigrate African Americans. He denied any intent to express hateful, racist expressions. Yet, the word itself, and the context in which it was used, along with other exchanges amongst the officers, leads to the inescapable conclusion that its use was distasteful, unprofessional and derogatory. Yes, just a word, but one that conjures up images for which a proper context does not exist when used today by police officers (white or black) about residents of Fort Lauderdale.

Arbitrator Fisher noted that the use of the word in this case this was not "a slip of the tongue in a fit of pique" or one time indiscretion, but rather the denigration of a group "as part of one's personal entertainment.”

Concluding that the conduct involved damaged the Department’s relationship with the community  Arbitrator Fischer found the conduct involved directly impacted the Department’s  ability to perform its duties. Arbitrator Fischer observed:

The tasks facing police departments are considerable as populations have grown more culturally, racially, ethnically and religiously diverse. It is well known throughout this country that tension and conflict exists between police and some populations of the communities they serve. Unavoidably, the role police have in enforcing the law and maintaining order places officers in key positions to deal with all kinds of conflicts. Additionally, the actions of officers and the perceptions of the public result in heightened media, political and public attention. Bad news travels fast. Perceptions become reality. Enough gossip turns into fact.

Accordingly he found that the City had established cause for the officer’s dismissal.

In his award, Arbitrator Reynolds reiterated that police officers are held to a higher standard of conduct than other professionals:

... the primary duty of police officers is that of law enforcement. As such they are often the first to be involved in actions that could result in depriving citizens of their freedom. That is a formidable responsibility. In order to effectively discharge their responsibilities police officers must have the respect of the community they serve. That requires that they adhere to high standards of conduct in both their private and professional lives.

Like Arbitrator Fischer, he rejected the officer’s assertion that his intent was not to be racist or disparaging, finding that the comments were clearly racist “and his intentions do not provide any other meaning."

Even accepting as believable the officer’s testimony that he was not a racist, Arbitrator Reynolds found:

His comments were racially offensive, and some were demeaning to members of the Department. His conduct was clearly unbecoming that of a police officer and the record shows that it was prejudicial to the good order of the Department. It is not likely that he would repeat his misconduct, but a cloud over him would persist that would hamper his effectiveness as a police officer in the City of Fort Lauderdale.

Finding that there was a convincing showing that the officer’s conduct had a “disturbing effect “ on the community’s trust in the Department, Arbitrator Reynolds concluded:

What fundamentally matters here is the issue of [grievant’s] conduct as reasonably viewed by the Department and ultimately the community. Through that perspective the record supports a finding the [grievant’s] termination was for cause.

Arbitrator Fischer's award can be found here. Arbitrator Reynolds' award here.

exchanges amongst the officers, leads
s use was
distasteful, hat conjures up images for which a proper context does not
exist when used today by police officers
(white or black) about residents of Fort