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. 

Sunday, February 19, 2017

Quick Hits - Public policy, double jeopardy and emails

Four (unsuccessful) public policy challenges to arbitration awards

Courts continue to carefully scrutinize challenges to arbitration awards based on claims that the award is contrary to public policy. In  Cuyahoga Metropolitan Housing Authority v. Fraternal Order of Police, Ohio Labor Council, the Ohio Court of Appeals rejected the agency's request to vacate an award that converted a termination of a CMHA detective into a thirty day suspension. The Court, with one dissent, found that it was bound by the arbitrator's factual findings that the detective had not used excessive force, nor had he been dishonest as the agency had alleged. Given these factual findings the Court found no basis to overturn the award.  In City of Guthrie v. Fraternal Order of Police, Lodge 105 the Oklahoma Court of Civil Appeals similarly rejected the City's challenge to the award  of Arbitrator Mark Reed which reduced the discipline of a police lieutenant accused of improperly arresting the former husband of his girlfriend. The court found no public policy impediment to enforcement of the decision imposing a suspension rather than a termination. In Jersey City POBA v. City of Jersey City  the NJ Superior Court found no "contractual, administrative, legislative, or legal authority" compelling it to vacate an award ordering the City to pay terminal leave benefits to an officer who retired during the pendency of criminal proceeding against him. Finally, in Cornwall-Lebanon School District, v. Cornwall-Lebanon Education Association, the Pennsylvania Commonwealth Court reversed a lower court's decision vacating an award as contrary to public policy. An arbitrator had converted the discipline of a teacher, who had a sexual relationship with a student starting on her graduation night and who was alleged to have lied about it, from termination to a one year suspension. The lower court concluded that termination would prevent future inappropriate conduct and that a teacher who had lied was not an appropriate mentor for students. The Commonwealth Court found that the lower court had improperly reweighed the evidence, and noted that the arbitrator had imposed an appropriate remedy for the misconduct he found. Accordingly, and "[k]eeping in mind that the public policy exception is narrow" the Court reversed.

Arbitrator finds exchange of racist and pornographic emails justified termination

Arbitrator James Reynolds denied the grievance filed on behalf of  Miami Beach Police Lieutenant who had been terminated for distributing racially and sexually charged emails with other members of the police department. Rejecting the Union challenge to the timeliness of the investigation, and claims of disparate treatment and double jeopardy (arising from prior undocumented counseling and a demotion from a non bargaining unit position) Arbitrator Reynolds found grievant's actions "shameful and disgraceful" and sustained the termination.

Court erred in hearing testimony on petition to vacate arbitration award

The City of Norwalk, CT terminated the employment of a police sergeant who had allegedly informed another officer of a criminal investigation against him. The termination was grieved and ultimately heard by a panel of the Connecticut Board of Mediation and Arbitration. The panel (2-1) upheld the termination. In doing so it rejected the sergeant's claim that he had been subjected to double jeopardy because he had been reassigned to a different position after discovery of his actions. The panel rejected this claim, finding that no grievance had been filed about the transfer and that a transfer was not disciplinary. The Union sought to vacate the award, claiming that it was in manifest disregard of the law since it ignored the "long standing " principle that double jeopardy was part of the just cause analysis.  The trial court ordered a hearing and allowed the Union to present testimony on the circumstances surrounding the grievant's transfer. After hearing testimony the trial court concluded that because the City had no right to discipline grievant twice for the same event there was no just cause for the termination. Accordingly, it vacated the award.

The City appealed and the Connecticut Supreme Court unanimously reversed. It held:

We conclude ... that the trial court improperly allowed Couture [the grievant] to give testimony on the issue and substituted its finding that Rilling's reassignment of Couture to the patrol division constituted discipline for the arbitration board's finding to the contrary. Because the trial court's conclusion that Couture was subject to double jeopardy was predicated on this finding, and because this conclusion, in turn, provided the basis for the court's determination that the arbitration award was in manifest disregard of the law, that determination cannot stand. Accordingly, we conclude that the trial court improperly vacated the award of the arbitration board.

Sunday, February 5, 2017

Court rejects Union's challenge to outsourcing award-work was supplemental and was not replaced elsewhere

Steelworkers Local 10-86 represents employees at Merck facility in West Point, PA. The facility is primary used for the production of large molecule products like vaccines, rather than small molecule products like tablets.

Merck sold a small molecule product (Janumet) used to control blood sugar levels in individuals with Type  2 diabetes. In 2006 Merck entered into a contract with Patheon, a third party supplier, pursuant to which Patheon would produce no less than eighty percent of the total worldwide requirements for Janumet. In 2006 the West Point facility was designated as a back up facility which could supply the difference between the demand and what Patheon could manufacture. Production of Janumet at West Point continued until December of 2014 when Merck announced that it was ceasing the manufacture of Janumet at West Point because a back up supplier was no longer needed in light of "stabilization of supply and demand."

The Steelworkers grieved that decision, alleging that the Company's actions violated language of its cba which provided:

                                                     Article 15-Subcontracting
It is the intention of the parties and of this provision to protect and preserve bargaining unit work for bargaining unit employees.

The Company will not contract out work to individuals or to other companies which is normally performed by bargaining unit(s) employees where the necessary equipment is at hand, qualified employees are available, project completion dates can be met and the results would otherwise be consistent with efficient and economic operations. 

  The Union claimed that the Merck had outsourced or contracted the Janumet work at West Point in violation of the clear and express language of the contract. Merck maintained that it had not outsourced work, but that it had simply hired and laid off employees as demand for Janumet rose and then fell. It argued that it had ceased production at West Point without hiring employees elsewhere.

The dispute was submitted to Arbitrator Shyman Das, who issued an award on September 1, 2015.  Arbitrator Das essentially agreed with Merck. He concluded:

In these particular circumstances, a critical consideration as to whether the Company violated Article 15 is that the production of Janumet at West Point always was in a backup or contingent capacity. [footnote omitted[ External suppliers, in particular Patheon, always have been the primary source of Janumet production. There never was a specified volume of share of total production assigned to West Point. For much of the seven years period in which certain strengths of Janumet for distribution in the United States and European Union were manufactured at West Point, the Company needed all the Janumet West Point could produce with its existing and later expanded ...facilities and manpower. When the need no longer was there, the Company -- consistent with its large molecule versus small molecule business strategy -- decided to cease production of Janumet at West Point because its other primary suppliers with their expanded capacity were more that capable of meeting the no longer increasing demand for Janumet. On these facts, I am unable to conclude that the Company violated Article 15 by "contract[ing] out work ... which is normally performed by bargaining unit (s) employees " at West Point.

The Union sought to have the award set aside, claiming it was one of the "rare instances" where an award was subject to reversal because:

    ...  the arbitrator made his decision based on principles that were not bargained for and are not encompassed within the CBA. Specifically, the Union argues the arbitrator impermissibly "used third-party contracts and un-bargained for concepts about exclusivity and primacy to interpret the already plain and unambiguous language of Article 15."

The District Court rejected this effort and confirmed the award. Contrary to the Union's claims, the Court concluded that the arbitrator was at least "arguably construing" the cba and that there was no basis to find that he was adding to or ignoring it. The Court  noted that Arbitrator Das specifically addressed the question  of whether the work in question was "normally performed" by the West Point employees and that he also found that the work done at West Point was not replaced elsewhere. The Court noted:

Given the need to define "normally" under Article 15, the course of dealings between the parties (particularly West Point's explicit role as a supplemental supplier and Merck's large molecule-small molecule business strategy), and the fact that no jobs lost at West Point were recreated elsewhere, I am persuaded that, whether right or wrong, the arbitrator's decision was rooted in the language of the CBA. For these reasons, the Union has failed to meet its difficult burden. The arbitrator's award must be affirmed, and summary judgment is therefore granted to Merck.

The Court's decision in  United Steelworkers, Local 10-00086 v. Merck & Co. can be found here.

Sunday, January 29, 2017

Police officers, Brady/Giglio, dishonesty, exoneration and just cause

A recent award by Arbitrator Micheal Falvo addresses all of these topics. Arbitrator Falvo sustained a grievance filed on behalf of a Champaign, Ill. police officer terminated after the State's Attorney declared that she did not believe she could use him as a witness because of his disciplinary history, including  an allegation of dishonesty overturned in an earlier arbitration.

Officer Matt Rush began his employment with the City of Champaign in February 2010. Over the course of his employment he was the subject of several disciplinary actions. In March 2014 he was suspended for one day for failing to turn in a citation he had issued in connection with a traffic stop. He admitted he forgot to turn the ticket in and did not challenge the suspension. A second incident occurred in April 2014. Officer Rush was alleged to have engaged in unprofessional conduct in connection with his handling of a disturbance. He admitted using profanity and acknowledged he did not act professionally during this encounter. During the encounter Officer Rush twice kicked in the legs an individual who was refusing to get into the police vehicle. The Department agreed that the first kick was a reasonable use of force but maintained that the second was inappropriate. Rush was suspended for three days as a result of his conduct during this incident. A third incident occurred in May 2014 when Rush was accused of punching an individual he was attempting to subdue. He was also accused of dishonesty, i.e., falsely denying that he had thrown a punch. His employment was terminated as a result of these events.  Because of the claimed dishonesty the Chief sent the following letter to the State's Attorney:

As required by law, I write to inform you of a recent disciplinary matter involving an officer of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was charged with a violation of department policy wherein the offending behavior involved untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the Champaign Police Department is required to disclose such information regarding the untruthfulness of law enforcement officers to prosecutors.

Please feel free to contact my office in the event that you have any questions regarding this matter.

Rush grieved the termination and in April 2015 Arbitrator Fredric Dichter issued an award finding the one and three day suspensions appropriate (but finding the claim regarding the second kick unsupported), but overturning the termination. Arbitrator Dichter concluded that "the only evidence [of a punch] is a blurry video taken from some distance away ..." and found no evidence of malice or loss of temper but rather an effort to subdue an uncooperative person. The Arbitrator found this conduct, by itself, did not justify termination. Turning to "the other serious charge, dishonesty," he concluded that while some viewing the dash cam video (including himself) may view the video one way, grievant "may very honestly be seeing it another." Arbitrator Dichter noted:

Lying requires intent. Grievant is apparently wrong in his perception of what he did, but the Arbitrator finds it is based on his errant perception of events and not on an intent to deceive.

Concluding that discipline was warranted for grievant's handling of the incident, but not for dishonesty, Arbitrator Dichter reduced the termination to a thirty day suspension

In accord with the award, Rush was reinstated to the Police Department. The Chief also sent another letter to the State's Attorney enclosing a copy of the Arbitrator's award.

In December of 2015 local media reported on several pending settlements of claims involving local police officers use of force, primarily involving Officer Rush. Examples are here, here, and here. In response to citizen demands that Officer Rush be prosecuted for claimed use of excessive force, the State's Attorney conducted an investigation. On February 23, 2016 she informed the Chief of the results of her investigation and also issued a press release. While declining  to prosecute, she noted:

Although the State’s Attorney’s Office is declining to file criminal charges against Officer Matt Rush, in light of our review of Officer Rush's actions and behavior during these incidents and in the light of the entirety of Officer Rush's history of internal discipline for failure to adequately document use of force and untruthfulness, we are unable to use Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush's repeated discipline for failure to adequately document use of force and untruthfulness as outlined here and in other disciplinary actions reviewed in the course of this examination create a substantial issue with regards to his credibility as a state witness, subject him to cross-examination on these issues, and require the State’s Attorney's Office to work around him in order to bring criminal cases to trial. Moreover, a review of these incidents cause us great concern about his judgement and decision making in crisis situations, particularly with regard to his response the mentally ill. In light of these concerns, having given this matter serious consideration and taking into account his full disciplinary history, we have concluded that if Officer Rush were to return to active duty, we will not call Officer Rush as a witness for the prosecution in criminal proceedings.

Upon receipt of the letter, the Chief conducted a fact finding with Rush and his Union, but ultimately terminated his employment because he believed his inability to testify made him "unable to perform the essential functions of [his] position." This action was grieved and submitted to Arbitrator Falvo for resolution. After a comprehensive review of arbitration awards and case law, Arbitrator Falvo sustained the grievance and ordered grievant again be reinstated. The Arbitrator emphasized that except for the charge of dishonesty overturned by Arbitrator Dichter grievant had not been accused of or disciplined for untruthfulness. Noting the potential for "behind the scenes collusion," Arbitrator Falvo concluded:

If a prosecutor is empowered with the unbridled and unreviewable discretion to deem an officer “disqualified” to testify -- with the consequence that she loses her job because obviously there is no place in a police department for a law enforcement officer with that incapacity – contractual or statutory just cause protections are a nullity. An arbitrator would need to be more na├»ve than parties should expect not to realize that one must be alert to the danger that a losing party in a disciplinary arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be called testify that results in her dismissal cannot in the appropriate case meet the just cause standard. Rather, it means that an arbitrator’s non-delegable responsibility to determine whether just cause does or does not exist requires that he bring informed judgment to the case with the recognition that deference to the judgments of public officials cannot be blindly and uncritically ratified.

Regarding the positions articulated by the State's Attorney, Arbitrator Falvo found that in light of Arbitrator Dichter's conclusion that Rush had not engaged in intentional misrepresentation, her reliance on perceived Brady/Giglio obligations was misplaced.  He also found that the other reasons cited by her did not support a claim of just cause for the Officer's termination. Arbitrator Falvo similarly rejected the Department's reliance on the "well established doctrine of persona non grata" (typically used when a third party customer bars a bargaining unit employee from their premises).

Accordingly he ordered Rush' reinstatement with back pay and the expungement of any reference to the disciplinary action in his personal records.

A third arbitration, arising from a different incident, also claimed by the Department to justify Officer Rush's termination was scheduled for hearing but has since been settled. Pursuant to the settlement Rush waives reinstatement while the City agrees not to appeal Falvo's decision.

The New Hampshire Supreme Court addressed a similar issue in Duchesne v. Hillsborough County Attorney, granting the request of three police officers to have their names removed from that State's "Laurie List" after an arbitrator and the State Attorney General's office had cleared them of allegations of excessive force.

Sunday, January 8, 2017

Management rights clause doesn't supersede ADA - Court confirms arbitrator's award

A Solo Cup facility decided to end its lease of sit down fork lifts and instead to purchase several for its use. After a review of various options, Solo elected to purchase stand up fork lifts, concluding that these provided better safety and reduced the risk of injury. 

Tamela Wells was a bargaining unit employee who had operated a fork lift for a significant portion of her thirty-two years at the facility. Following the introduction of the stand up fork lifts, she sought an accommodation allowing her to continue to use a sit down lift. Wells presented medical information supporting her claim that the extended standing caused by the new fork lifts created problems for her. While the parties were initially able to accommodate Wells request to allow her to take more frequent breaks from operating a stand up fork lift, they ultimately came to impasse on her (and her physician’s) assertion that frequent breaks were inadequate and that she needed to be allowed to regularly utilize a sit down lift instead of a stand up one. 

Solo maintained that allowing this would be contrary to the improved safety the stand up lifts provided and that the management rights clause of the cba expressly authorized it "to change or eliminate existing methods of operations, equipment or facilities...." Concluding that it was unable to accommodate her request, and that there were no other available positions for her, Solo terminated Wells' employment.

Wells' Union (Teamsters Local 528) grieved that decision and the dispute was submitted to Arbitrator William Dealy for resolution. Arbitrator Dealy upheld  the grievance. He recognized that the cba allowed the Company to change equipment, but concluded that the Company breached its ADA obligations by failing to accommodate Wells. He ordered the Company to "provide the Grievant with a sit-down style forklift to use to perform her work." 

Solo sought to vacate the award, arguing that the award "usurped Solo's power to implement new equipment" and that, in any case, the award was not authorized by the ADA. 

The District Court for the Southern District of Georgia rejected both of these contentions and confirmed the award. Solo Cup Operating Corp. v. Teamsters Local 528. The Court noted that the arbitrator recognized the Company's contractual right to introduce new equipment and found that the award did not contravene that right. It concluded:

… the arbitrator may have concluded that, though Solo had the general power to manage its equipment, Article 5 did not obviate the possibility that Article 27 [the nondiscrimination article] could require Solo to introduce unique equipment for a single employee. While Solo may disagree with such an interpretation of the agreement, it is not so implausible that it warrants vacating or modifying the award.

The Court also rejected Solo's claim that the arbitrator erred by ordering it to adopt a specific accommodation, i.e to provide  grievant with sit down fork lift. The Court noted that the parties had previously discussed potential alternatives but were unable to agree. It noted:

…while the arbitrator may have been permitted to simply instruct the parties to decide on an accommodation themselves, he was not required to do so. As noted, the arbitrator framed the issues as: "Did the Company violate provisions of the parties' collective bargaining agreement and/or any provisions of Federal law . . . ? If so, what is the remedy?" (Doc. 24-4 at 24 (emphasis added).) And he decided that the appropriate remedy was to order Ms. Wells reinstated and provided with a sit-down forklift.

Moreover, to the extent the arbitrator contemplated leaving the determination of the specific accommodation to the parties to decide, his refusal to do so makes sense. Solo argues that numerous other accommodations existed, including allowing Ms. Wells to take breaks and moving her to a different position. But Solo rejected similar requests prior to the arbitration. Accordingly, it would not have been especially efficient for the arbitrator to broadly instruct Solo to comply with the ADA because it may have resulted in Solo once again refusing to accommodate Ms. Wells. That is, Solo was required to comply with the ADA prior to the arbitration. There is little reason to think that an abstract instruction from the arbitrator would have changed what Solo viewed as reasonable accommodations.

The Court granted the Union's request to confirm the award, but rejected its claim for attorney fees, finding the Company's position plausible if ultimately unfounded. 

Sunday, November 6, 2016

Law enforcement officers pointing weapons at co-workers - two terminations upheld

Two recent arbitration awards address discipline imposed on law enforcement employees alleged to have pointed loaded weapons at other employees.

In State of Ohio Department of Rehabilitation and Correction Arbitrator Howard Silver upheld the termination of a Corrections Officer who was found to have pointed a loaded shotgun at another corrections officer.

 Grievant alleged that the other officer, on several occasions, including shortly before the incident in issue, had shouted "whore, whore whore" at grievant while both were working at the Lebanon Correctional Institution. On August 21, 2015, grievant was on her way to the bathroom. Pursuant to her usual practice she was carrying her weapons, both the shotgun and a handgun. She came upon  the other officer and a third corrections officer. While there was some dispute as to precisely what took place, grievant testified that she twice asked the other officer  "Do you have something you want [or need] to say to me?" The officers testified that while asking this question grievant pointed the shotgun at the officer alleged to have made the "whore" statements. The third officer attempted to place himself between the two but grievant gave "stern" instructions for him to step aside.  Grievant was dismissed as a result of this conduct.

The arbitrator found no evidence that the other office had made the taunts alleged, but even if she had  the grievant's actions were unwarranted. He noted:

Even if [Grievant] had suffered taunts from a co-worker, such misbehavior would not justify the threatened use of deadly force. The allegations of wrongdoing made by [Grievant]  ... are not supported by a preponderance of the evidence in the hearing record and these allegations ... have not been substantiated.
Without proof of the misconduct alleged by the grievant ... the question repeatedly put to Officer Kelly by [Grievant] about whether Officer Kelly had something to say to [Grievant] remains unexplained. It may be that [Grievant] believed that this harassment had occurred when in fact it had not occurred, or it may be that the harassment occurred and it has not been proven to have occurred. In either event, the threat of deadly force against a co-worker remains unjustified and is found to be egregious misconduct, opening a person who engages in such threatening behavior to a severe disciplinary response based on the seriousness of the misconduct and the serious physical harm such misconduct threatens. 

Because he found grievant's conduct " so dangerous, so reckless, so coercive and intimidating" Arbitrator Silver denied the grievance and found just cause for the termination notwithstanding grievant's nineteen year discipline free history.

In County of Faribault and Law Enforcement Labor Services, Inc., Arbitrator Stephen Befort similarly denied a grievance and upheld the termination of a Deputy Sheriff. Grievant was alleged to have pointed his loaded service weapon at other deputies on six occasions. Grievant did not deny the conduct but claimed that there was no intent to threaten or harm the other deputies and that the conduct was engaged in in a playful or joking manner.

The arbitrator rejected this defense. He noted that the lack of ill will did not exempt the "serious and dangerous" misconduct from appropriate remedial sanction. He also rejected the Union's argument that a lack of progressive discipline undermined any claim of just cause for the termination.  He concluded: is well established that warnings and a pattern of increasing discipline are not required in instances of severe misconduct. An employee is presumed to know without warning or lesser discipline that severe misconduct is not permissible. ... Thus, an employer need not use progressive discipline when an employee commits serious misconduct such as theft or violence. The same is rue with respect to a law enforcement officer who points a loaded weapon at a co-worker.

The arbitrator concluded that despite what he found to be grievant's genuine remorse the department had "lost all trust" in his rehabilitation and that the County had established just cause for the termination.

Sunday, October 30, 2016

Social media, adverse publicity and just cause

The Clark County, Ohio Sheriff's office is responsible for County wide law enforcement and operates the county jail. The jail shares a building with the Springfield police department with a common lobby between the two. Grievant was one of two Sheriff's Office Sergeants on duty at the jail on May 13, 2015. On that evening a former deputy, who had been fired for alcohol related misconduct, entered the lobby. While there was some dispute about his initial condition he became increasingly inebriated as the evening progressed. The former deputy approached the window of the Sheriff's office and asked to speak with a Sergeant. One of the Sergeants on duty (not the grievant) responded. The former deputy claimed there was an incident down the street requiring attention, but could not provide any details. After being advised that there was nothing that could be done without additional information. Nevertheless the former deputy remained in the lobby, at one point lying next to the door. The responding Sergeant notified the Springfield police that the former deputy was in the lobby but instructed her deputies to leave him alone.

Approximately a half hour later an individual entered the lobby to turn himself in on an outstanding warrant. This individual recognized the former deputy from a prior jail stay and began videoing him on his phone. His recording showed the former deputy stumbling severely and urinating in the lobby. After the individual left then office he posted his recording on Facebook and contacted the local media to report what he had observed.

The following morning the Sheriff was faced with numerous media accounts of the incident and the Facebook posting and spent considerable time responding to media inquiries. He also asked the County prosecutor to conduct an investigation to determine if criminal charges against any Sheriff's Department employees were warranted.

After an investigation the prosecutor recommended the pursuit of misdemeanor charges against the  sergeant who first interacted with the former deputy and who directed the staff to leave him alone. The Sheriff decided not to pursue criminal charges but conducted an internal investigation. That investigation resulted in the termination of three sergeants, the responding sergeant, the grievant and a sergeant who came on duty while the former deputy was still in the lobby. All of the terminations were grieved. The termination of the responding sergeant was upheld (Termination upheld for fired Clark Co. sheriff’s sergeant). A hearing on the termination of the third sergeant has not yet been held. Arbitrator Tobie Braverman addressed the termination of the second.

Arbitrator Braverman concluded that the evidence supported a charge of conduct unbecoming, neglect of duty and unsatisfactory performance. She concluded that she should have, at a minimum, questioned the other Sergeant's decision to let the former depart remain in the lobby and should have called someone to check on the former deputy's mental state and possible need for assistance.  As to the penalty, however, Arbitrator Braverman concluded that termination was too severe. She addressed the impact of the negative publicity caused by the posting of the video to Facebook, but found this by itself insufficient to support termination. She observed:

Having determined that the Grievant committed the offense with which she is charged, the remaining question is that of whether the penalty meted out for her offense is appropriate in the circumstances present in this case. There can be no doubt that the decision to terminate the Grievant was influenced in significant part by the fact that video of the incident was posted on Facebook and covered by local media. This clearly reflected poorly on the Employer. It resulted in accusations of both favoritism, since [ ] was a former deputy, and indifference due to the lack of concern for his safety and that of the public. The publicity, however, cannot be the sole determinant in assessing the propriety of the discipline to be meted out to the Grievant. In this day and age when virtually everyone has a video camera in his pocket, it must be presumed that there is a real and present possibility that the events are being recorded and that those recordings will be posted to social media. While it is important that law enforcement personnel in particular be mindful of this fact, the mere fact of the additional attention cannot exclusively drive the penalty for misconduct.

In light of grievant's seventeen year discipline free history, and the principle of progressive discipline, the arbitrator ordered grievant's reinstatement without back pay. WDTN reports on the decision, and Arbitrator Braverman's award can be found here.