Arbitration award reinstating police officer found to have engaged in domestic violence deemed contrary to public policy

An appellate court in Illinois has affirmed the lower court’s decision to set aside, on public policy grounds, an award reinstating a police officer terminated for acts of domestic violence and untruthfully responding to questions about the incident. Decatur Police Benevolent And Protective Association Labor Committee v. The City of Decatur The officer had been employed by the City of Decatur since July of 1994. During his employment he had received a number of awards and commendations for his work.

In September, 2009 he received a thirty day suspension for domestic battery. In January, 2010, grievant was again investigated for domestic violence. He was ultimately terminated for the alleged domestic violence and for allegedly making untruthful statements to the department during the investigation.

The arbitrator concluded that, while the City had proved by a preponderance of the evidence that grievant had engaged in this conduct, the appropriate standard of proof to uphold a termination was proof by clear and convincing evidence, which he concluded the City had not met. The arbitrator noted also that there was no evidence of a judicial finding that the officer “has committed the crime of domestic battery”. He converted the termination to a 45 day suspension.

On the City’s action to set aside the award, the lower court concluded that the award “does not in any way promote the welfare and protection of victims of domestic violence. It sends a message that police departments must continue to employ an officer found to be abusive and untruthful, even after employing progressive discipline in an effort to correct this behavior.”

On appeal, the Appellate Court affirmed. It determined that the arbitrator had found (albeit by a preponderance of the evidence) that the officer had engaged in the misconduct alleged, and that it was contrary to public policy to overturn the termination. It concluded:

We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer. We agree with the trial court – there is well-defined and dominant public policy against acts of domestic violence. Acts of domestic violence are even more disturbing when committed by a police officer-whether on or off duty. It is a violation of public policy to require the continued employment of an officer who has been found to be abusive and untruthful. We find the standard of proof is preponderance of the evidence. The arbitrator concluded the act was proved by preponderance and the lie was proved by preponderance. It would be repugnant to public policy to retain [Grievant] as a police officer in these circumstances.

Labor Arbitration in the News

The Chronicle of Higher Education reports that Arbitrator Jeffrey Jacobs has ordered the University of Northern Iowa to stop using student assessments as a basis for deciding whether to grant faculty merit pay. Arbitrator blocks U. of Northern Iowa From Basing Faculty Merit Pay on Student Evaluations. The article contains a link to the award. The arbitrator rejected the University’s position that there was a binding past practice justifying their position.

The Boston Herald reports that the parties have asked arbitrator Shyman Das to hold off issuing a written decision explaining his ruling overturning the suspension of Ryan Braun while they negotiate changes in specimen collection. Might be no written decision in Ryan Braun

The City of Philadelphia has filed suit seeking to set aside an arbitrator’s award granting pension service credit to a police officer who was terminated but subsequently reinstated to his position with full seniority but without back pay. According to The Pennsylvania Record, the City argues that only the pension board, and not an arbitrator, can make such a decision regarding pension credit. City seeks to set aside arbitration award involving police union

Arbitrator Shyman Das has ordered the US Postal Service to cease requiring employees to use only DOL form WH-380 in seeking FMLA coverage. APWU Wins Important FMLA Arbitration. In his award Arbitrator Das finds that the parties cba, as interpreted by the Joint Contract Interpretation Manual, allows employees to provide information in any form that contains the same information required by WH-380.

Arbitrator erred in failing to consider post removal events

The U.S. Court of Appeals for the Federal Circuit has found that an arbitrator erred in failing to consider evidence of post-removal events offered in mitigation of the grievant’s alleged offenses. Norris v. Securities and Exchange Commission.

Grievant was employed as a trial attorney with the SEC. He was removed from service based on three emails he sent from his SEC email account. One was sent to the Washington Post in which he identified himself as a Senior Trial Counsel and expressed certain political views, a second was sent to two supervisors and members of the support staff in which he allegedly demeaned the staff, and the third transmitted a confidential SEC report in claimed violation of SEC policies.

Grievant claimed that the conduct alleged was mitigated by his personal circumstances, including his own AD/HD, and medical conditions affecting his wife and daughter. He also presented evidence , including testimony of his psychiatrist, that since the removal his personal circumstances had improved and his conduct was unlikely to recur.

Arbitrator Daniel Winograd upheld the removal. While noting that grievant had presented a sympathetic case, the issue before him was whether the decision to remove grievant “based upon the facts known to [the Agency] at the time, was within ‘tolerable limits of reasonableness” He declined to consider post-removal events in rendering his decision.

On review, the Court of Appeals noted that the standard of review was the same as if the dispute had been heard by the Merit Systems Protection Board. The Court noted that a hearing (either before an arbitrator or the MSPB) may include new evidence regarding either the merits of the underlying claimed misconduct or the appropriateness of the penalty.

The court concluded:

     Thus, we hold that where new evidence in mitigation of the penalty imposed is presented to the Board (or the arbitrator), the evidence must be considered in determining whether the agency's imposed penalty was reasonable.

     In this case, the arbitrator erred in holding that "post-removal ... good conduct is not relevant to the issue before the arbitrator...." In assessing the reasonableness of the penalty imposed, the arbitrator should consider post-removal evidence that was brought to his attention.

Accordingly, the Court remanded the matter to the arbitrator for his consideration of the mitigation evidence, but left to his discretion whether, in light of all the evidence, the penalty was within the “tolerable limits of reasonableness.”

Labor Arbitration in the News

The Niles Journal Online reports that an arbitrator has ordered the reinstatement of a police officer who had been terminated for alleged off duty misconduct. Arbitrator Orders Suspended Niles Officer Reinstated

In what appears to be an interest arbitration, Arbitrator Walt De Treux has determined, according to the Washington Examiner, that Montgomery County Maryland police officers should not receive disability payments while in jail, but the benefits should resume upon their release. Jailed Montgomery County Cops Can Keep Disability Pay, arbitrator rules

New York Public Personnel Law reports on a decision of the New York Appellate Division affirming the lower court’s refusal to stay an arbitration brought by the PBA alleging a breach of the collective bargaining agreement. Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration. The court noted that whether there was in fact a breach was an issue for the arbitrator to decide, not one which should be adjudicated in the context of a request for a stay.

Impact of absence of management rights clause

Arbitrator Stuart Levinson has issued an Award discussing the impact of the absence of a management rights clause in a labor agreement. Laborer’s Local 113 grieved the actions of Forest Home Cemetery in subcontracting certain work, transferring work to non unit employees, and having the Cemetery superintendent perform work of the type performed by unit employees. The contract was silent on the issue of subcontracting and did not contain a management rights provision.

In its defense, the Cemetery relied in part on its “inherent right” to manage the workforce. In addressing this contention, Arbitrator Levinson observed:

 As the employer asserts, most arbitrators hold that employers have primary rights, and

may act unfettered except as by law or agreement. In our capitalist economy, after all, it is capital, exercised through ownership and management, subject to government regulation as appropriate, which creates, maintains and directs the private sector enterprise.

However, I take arbitral notice that it is now standard for a labor agreement to have a

management rights clause, and highly unusual when it doesn’t. Such provisions “appear to be widely favored by management,” and have been found in 60%-80% of labor agreements in various surveys. How Arbitration Works, 6th edition, Ruben, ed., (BNA Books, Washington D.C. 2003), p. 660. That is, the collective judgment of employers is to have a management rights clause, which means such a clause has value to management. Its absence must therefore mean a loss of value to management. Also, since most collective bargaining agreements include a management rights clause, the general understanding of the reserved rights of management is based on contracts which do include them. The lack of a management rights clause in the labor agreement here under review weakens the employer’s claim of inherent authority, and will prove significant when considering the relevance and importance of prior cases which do involve such a provision.[Footnote omitted]

Notwithstanding what he viewed as the employer’s “limited inherent power” the arbitrator denied the Union’s grievance concerning the superintendent’s claimed performance of unit work and the subcontracting of unit work, finding that the Union had failed top meet its burden of proof. However he sustained the grievance concerning the transfer of work to non unit employees.

Labor Arbitration in the News

 Arbitrator Richard Beens has upheld a 20 day suspension imposed on a bus driver for talking on her cell phone while driving. Bus driver disciplined for using a cellphone. Arbitrator Beens’ award can be found here.

Portland Mayor Sam Adams has indicated that he will not comply with an arbitrator’s award ordering the reinstatement of Officer Ron Frashour. Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour. The Portland Police Association has accused the Mayor of breaching a commitment that the arbitration award would be “final and binding”. The Police Association’s press release can be found here.

“Arbitrator Douglas Hammond concluded the district should assign field trips to drivers based on seniority without considering overtime costs” reports AZcentral.com. Paradise Valley bus drivers prevail in district dispute. The arbitrator concluded that the district violated the contract when it changed the way it assigned field trips to minimize overtime.

The Tahlequah Daily Press reports that an arbitrator has found that the City of Tahlequah, OK violated its cba with FOP Lodge 201 by applying a separate seniority list to grant funded officers. Arbitrator: City broke union pact. Arbitrator T. Zane Reeves concluded that an officer who transferred from a grant funded position to a position in the classified rank was entitled to keep his original seniority date.

Adjunct Law Prof Blog reports on a pending arbitration of a teacher claiming she was terminated for refusing to provide her employer with her Facebook password. Reportedly Teacher’s aide challenges Michigan district in arbitration claiming she was suspended for refusing to provide online passwords

The Society of Professional Engineers in Aerospace is preparing a lawsuit claiming that Spirit AeroSystems is refusing to honor the contractual grievance process. Spirit union to seek arbitration

The termination of an Albany NY police officer has been approved by arbitrator Sheila Cole. The officer had been accused of a number of off duty incidents including two arrests for domestic violence. Cop fired under ruling

A number of arbitrators who hear disciplinary cases for teachers and administrators are declining to accept new cases because of claimed slow pay by the State of New York. Arbitrators balk at slow pay from state

Arbitrator may review denial of unescorted access to Nuclear Facilities

The Seventh Circuit has reversed a district court’s decision concerning the ability of an arbitrator to review and remedy the wrongful denial of unescorted access to nuclear facilities.Exelon Generation Co. v. Local 15, IBEW. The Circuit rejected Exelon’s argument that the Nuclear Regulatory Commission’s regulations limit the ability to review the denial of unescorted access to the licensee. The court noted that there has been a lengthy history of NRC approval of arbitral review of denial of access decisions and nothing in either the revised regulations or the comments in the regulatory rulemaking record indicated an intent to change that policy


Update: The Seventh Circuit  has rejected a request for rehearing en banc, with Judge Posner writing a separate opinion calling for congressional or NRC action to address the issue of arbitrator's review of unescorted access questions.  The Court's decision can be found here.

Labor Arbitration in the News

An arbitrator has concluded that the Portland Public Schools unfairly increased the workload for remaining teachers following a layoff. New Ruling: PPS Teachers are Overtaxed; Decision Could Cost School District $1.5 Million. The award of Arbitrator William Reeves can be found here.

The Town of Stonington, Ct. spent close to $ 4,000. defending against a claim for $116. in overtime compensation. Arbitrator rules Town must pay worker $58.02. The underlying grievance involved a claim that the Town breached a commitment to equalize overtime. The Town noted that the case raised a policy issue that was likely to recur.

The Association of Professional Police Officers has filed a complaint asserting that the City of Aurora has failed to comply with an arbitrator’s decision on wages and health benefits. Aurora police union claims city not following contract

The New York Times discusses the careers of teachers reinstated as a result of an arbitrator's award.  Found to have misbehaved with students, but still teaching.

Three Police related Awards

Arbitrators have issued awards in three cases, each involving police department bargaining units.

Arbitrator Jane Wilkinson has ordered the City of Portland to reinstate a police officer terminated for his involvement in the shooting of an individual who turned out to be unarmed.  OregonLive summarized the decision; Arbitrator orders Portland reinstate Ronald Frashour as an officer, with lost wages, and links to the award.  While recognizing it as a “tragic case", the arbitrator concluded that the officer did not act unreasonably and that given the circumstances and the need for a quick decision “a reasonable police officer could conclude that had Mr. Campbell pulled a gun, he would have fired it- possibly at others, or perhaps at himself. The case law points to the conclusion that this is a sufficient basis for finding that there was an objectively reasonable basis for believing that Mr. Campbell posed an immediate risk of serious injury or death to others”  As a result, the arbitrator concluded that the City lacked  just cause for the termination. The decision has prompted protests and the Mayor has indicated an intent to appeal the award.  Arbitrator's ruling for Portland police officer's reinstatement sparks protest   Update: Arbitrator Janet Gaunt has issued an award,discussed here, addressing the conduct of three other officers involved in this incident.

In another police related case, Arbitrator Ira Jaffe has rejected the efforts of the Baltimore County Police Department to remove police lieutenants from the bargaining unit.  County Loses Arbitration Ruling to Police Union  (contains a link to the award). In the context of an interest arbitration proceeding, the arbitrator found that the County had not bargained in good faith by raising the issue of unit definition in this proceeding.

The Quad City Times reports that Arbitrator James Cox has rejected a grievance filed by the Davenport Union of Professional Police seeking back pay for 25 police sergeants who claimed that a demoted Captain was paid at his Captain’s salary after his demotion to Sergeant. City wins grievance, won’t have to pay $399K. The article also contains a link to the arbitrator’s award. Arbitrator Cox concluded “Payment of one employee above scale is not remedied by paying all employees in the same classification the rate of the overpayment”

Arbitrator rejects Union's claim that past practice modified contract

Arbitrator Thomas Gallagher has issued an Award in a dispute between the City of Chisolm, Minn and AFCSME, Council 65, rejecting the Union’s claim that the City breached its agreement by allegedly ignoring a past practice concerning overtime. While the agreement contained a fairly broad management’s rights clause giving the City broad authority to “schedule work”, the Union claimed that the parties had established a practice by which employees called in to work early had the option to either leave after eight hours or continue to work their full shift, earning overtime for hours in excess of eight.

Both sides introduced evidence concerning prior incidents and grievance settlement agreements, but Arbitrator Gallagher found the evidence insufficient to establish that the past practice rose to the level of an amendment to the contract, modifying the management rights clause.

The arbitrator noted

In rare cases, arbitrators may rule that the parties to a contract have shown by their conduct—i.e., by practice—an intention to amend contract language that is not ambiguous. In such a case, however arbitrators require a showing, beyond mere practice, that the parties have a mutual intent to amend clear, unambiguous language. Arbitrators require not only a showing of longstanding and consistent conduct, but, in addition, some indication that both parties have understood that the practice conforms to an intended amendment of that clear language.

Finding nothing in the evidence showing the Employer decided to accept a limitation on its broad authority to schedule work, the arbitrator denied the grievance.