Monday, June 4, 2012

Firefighters, Police Officers, Teachers- Three Awards

Fire Prevention Bureau’s Condonation of misconduct warranted mitigation of discipline:

 Arbitrator Edwin Benn has issued an award reinstating four Chicago firefighters and reducing the discipline on 44 others. The Chicago Sun-Times has a report about the case
Arbitrator: Mileage padding ‘almost a work rule’ in fire prevention unit and Chicago Tribune columnist Eric Zorn Arbitrator goes the extra mile to help fire department cheaters has a link to the award here. 

The firefighters were disciplined for what the Arbitrator found to be their essentially undisputed actions in knowingly submitting inaccurate mileage reimbursement reports, enabling them to claim the maximum reimbursement each month. Arbitrator Benn noted that the employees’ conduct “clearly violates reasonable expectations of employees in the workplace” and clearly violated the applicable rules. However he found that the actions were “condoned- indeed, encouraged (as well as engaged in) – by their supervisors”. But for that condonation the Arbitrator concluded that the City would have been within its rights in terminating all of the grievants. Nevertheless, he found that “the condonation and supervisory encouragement for the FPB employees to submit the maximum amount allowable for mileage reimbursement instead of submitting actual mileage expenses incurred was so deep, long-standing and pervasive that it went beyond condonation to rise to the level of becoming a work rule in the FPB.”

The Arbitrator also concluded that while the city had not constructively discharged two of the grievants it had improperly refused to allow them to rescind their resignations. He therefore treated them as employees covered by the grievance. 

Noting that “the purpose of discipline is to send a corrective message to employees” the Arbitrator found the discipline imposed excessive and reduced each of the suspensions and reversed the terminations.

Mayor Emanuel has indicated he will not seek to overturn the award.
Emanuel won't appeal firefighter mileage padding case.

City did not violate contract when it terminated the Police Department’s Support Car program:

Downes Fishel Hass Kim reports on a recent decision of Arbitrator Clarence Rogers, and links to the award. The dispute involved the City’s actions in terminating a program that assigned a vehicle to each officer in the department for his or her exclusive use in the performance of their duties, and allowed the officer to take the vehicle home at the end of their shift and use it for personal purposes. The program was not expressly referenced in the cba, but the agreement did provide that all working conditions would be maintained “until good faith efforts have been exhausted between the Chief of Police or his designee and the FOP”

The newly elected Mayor (elected following the recall of his predecessor) issued a memorandum prohibiting all City employees from taking City owned vehicles home. This action was protested by both the Police Chief and the FOP. The directive was delayed for a week to allow the Chief, the Mayor and the FOP to discuss the issue before the directive took effect. After that meeting, certain employees were allowed to continue to take the vehicle home, while the program was discontinued for the remainder. 

Rejecting the Union’s grievance, the Arbitrator concluded that the evidence of the City’s fiscal problems supported the City’s actions and the Union had not met its burden of proving a violation of the contract. The Arbitrator observed:

           Private sector employers get their income through profits; and answer to the board of directors. The City depends primarily on taxation from its citizens to fund its operations. As a result, elected officials listen and answer to the concerns of their constituents. It should be noted that testimony was presented to show that the immediate past mayor was recalled by the citizens of Portsmouth. Also, the levy tax that was on the ballot before the Program was eliminated failed. The tax levy that was on the ballot after the Program was modified was passed.

           I am not suggesting that the public has a right to control or overrule the Agreement of the parties. I am saying the Agreement is subject to an interpretation which is consistent with the interests of the public.

The Arbitrator concluded that the meeting between the Mayor, the Police Chief, and the FOP satisfied the City’s obligations under the cba. 

School Board improperly modified teacher layoff procedures: reports on an award by Arbitrator James Sherman finding that the Jefferson Parish School Board violated the parties’ cba by unilaterally changing the order of layoffs.
Jefferson Parish school officials slammed in arbitration ruling. The Jefferson Federation of Teachers links to the award here.

The cba provided that “If the Board shall determine that it is necessary to lay-off any teachers, such lay-offs shall be in inverse order of seniority, provided the teachers remaining are fully certified to teach the department /subject areas remaining to be taught.” During the term of the cba, the Board issued a new Reduction in Force Policy. Pursuant to the new policy, a teacher whose most recent appraisal rating was “unsatisfactory” or “needs improvement” would be laid off first. The union challenged the new policy and a hearing was held before Arbitrator Sherman.

Initially, the Arbitrator rejected the union’s efforts to challenge the determination that lay-offs were “necessary”. The Arbitrator observed “This sort of decision is one of the most sacrosanct of management’s prerogatives. No arbitrator should delve into the minutiae of whether a school board should lay off a specific number of teachers with one specialty while recruiting twice as many with a different specialty that may be in shorter supply in the district. It is not just a simple matter of numbers. It is a complex and slippery slope to nowhere”.

On the merits of the contractual issue, however, the Arbitrator upheld the grievance in a strongly worded opinion. He noted:

This case may not involve an investigation into whether layoffs were necessary, but that is not the point. These Teachers were not laid off. They were fired for a single cause. The problem for the Board was that they never proved that any of the sub-optimal performance appraisals issued to any of the 50 or so Teachers gave them just cause. ***
You can call it a layoff, but if it looks like a discharge, walks like a discharge and quacks like a discharge, then it is not a layoff. It is a discharge. These were not layoffs. They were discharges for unproven causes. This was an end run around the due process rights and freedoms from arbitrary treatment that lies at the core of the Parties’ Agreement. It was a premature and risky end run around the established standards of proof and guarantees of due process that characterize workplace discipline in a unionized setting.

 The Arbitrator remanded the dispute to the parties to determine how the impacted grievants could be made whole “in all procedural and substantive respects” but retained jurisdiction for the purpose of resolving disputes about the implementation of the award.

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