Arbitrator Paul Greenberg has overturned the demotion of two Oakland police officers arising out of their management of a SWAT response to the fatal shooting of two other officers. Lt. Christopher Mufarreh and Capt. Richard Orozco were demoted after a Board of Inquiry concluded that each was guilty of "gross dereliction of duty" in connection with the incident.
After a lengthy review of the facts surrounding the shooting and the police response in which two additional officers were killed, Arbitrator Greenberg determined that the conduct of both Lt. Mufarreh and Capt. Orozco was consistent with Oakland Police Department practice and training, and that both officers had been improperly singled out for discipline.
Arbitrator Greenberg rejected the City's reliance on evidence purporting to show that the officer's conduct deviated from "best practices". He noted:
Additionally, with regard to the entire [Board of Inquiry] process and its review of the tactical operations performance on March 21, Capt. Hansen testified his role (and the role of the other
experts) was to measure the actions of the OPD staff against general industry standards (i.e., “best practices”). ... Although this probably is the appropriate measure for evaluating OPD’s overall response to the incident, this Arbitrator questions whether it is the appropriate standard for evaluating the individual culpability of employees, who should be measured against
the employer’s standard policies, the training they have received, and the employer’s commonly accepted practice.
Arbitrator Greenberg also noted that other, higher ranking, officers were on the scene and, according to OPD policies, should have, but did not, assume command responsibility. These higher ranking officers were not disciplined. Viewing this as evidence of selective enforcement of policies, the Arbitrator observed:
In this Arbitrator’s view, however, the City’s decision to single out Lt. Mufarreh and Capt. Orozco for discipline does not adequately recognize the responsibility of others – including their organizational peers, and also some of the senior management of the Department. Like the
matter involving Sgt. Wingate [in an earlier unrelated dispute], the decision to discipline Lt. Mufarreh and Capt. Orozco has the appearance of the Department needing to hold someone individually accountable for the tragic deaths of Sgt. Romans and Sgt. Sakai, but not considering the possibility that senior-level management decisions also contributed to the chain of events.
Arbitrator Greenberg concluded "if OPD is going to hold Lt. Mufarreh to a strict ... interpretation of the General Orders when justifying its decision to demote him, then it is reasonable to question why other OPD personnel are not held to a similarly strict reading of the General Orders."
In light of these findings, the Arbitrator sustained the grievance and ordered the City to restore both officers to their prior rank.
Arbitrator Greenberg's award can be found here.
Saturday, May 25, 2013
Sunday, May 19, 2013
Termination of Union business agent for misuse of confidential information upheld
Grievant was employed by the Minnesota Association of Professional Employees, the Union representing state employees, as a business agent. She was also a member of OPEIU Local 12, the Union representing the MAPE staff. OPEIU and MAPE were engaged in negotiations for a new collective bargaining agreement. After MAPE declared an impasse in negotiations, OPEIU filed both a grievance and an unfair labor practice charge. MAPE sought advice from outside counsel who sent a letter outlining a legal analysis and recommended responses to the grievance and charge. A receptionist opened the letter, realized it related to the OPEIU negotiations and showed it to another OPEIU member. That member in turn made a copy and provided it to the grievant. Grievant proved the copy to the OPEIU shop steward. The steward gave the letter to the OPEIU business agent and it was discussed at a union meeting.
MAPE learned of the incident and conducted an investigation. As a result of the findings, three of the four individuals who had transmitted copies of the letter resigned. Grievant declined to resign and her employment was terminated.
OPEIU grieved the termination and Arbitrator Richard Beens rejected the grievance. Arbitrator Beens concluded that even in the absence of a written rule, grievant knew it was wrong to possess and pass on the legal opinion. He observed "It is entirely reasonable for any employer to expect employees to be honest and trustworthy. It is equally reasonable to believe all employees have a universal understanding of this simple expectation." Rejecting the claim that the discipline was unduly harsh, Arbitrator Beens found that the misconduct went to the heart of the employer-employee relationship and was a serious violation of the level of trust expected of the grievant.
The Arbitrator also rejected reliance on grievant's 17 year work record as a basis for mitigation, noting:
A seventeen-year spotless work record would ordinarily carry great weight when considering levels of discipline. There is no doubt Grievant was a highly valued employee who previously did excellent work for the Employer. On the other hand, vast experience can also cut the other way. Based on her seventeen years as a business agent, contract negotiator, and grievance advocate, Grievant was in the best position to recognize the magnitude of the misconduct. Grievant’s assertions that she, “just wasn’t thinking because she was so busy,” ring hollow. The ultimate test of character is doing the right thing even when you believe no one is looking. In this instance, Grievant failed that test.
Pursuant to the parties' cba, the Arbitrator found the conduct of the grievant amounted to "gross misconduct", justifying the termination notwithstanding the absence of progressive discipline.
Arbitrator Beens award can be found here.
MAPE learned of the incident and conducted an investigation. As a result of the findings, three of the four individuals who had transmitted copies of the letter resigned. Grievant declined to resign and her employment was terminated.
OPEIU grieved the termination and Arbitrator Richard Beens rejected the grievance. Arbitrator Beens concluded that even in the absence of a written rule, grievant knew it was wrong to possess and pass on the legal opinion. He observed "It is entirely reasonable for any employer to expect employees to be honest and trustworthy. It is equally reasonable to believe all employees have a universal understanding of this simple expectation." Rejecting the claim that the discipline was unduly harsh, Arbitrator Beens found that the misconduct went to the heart of the employer-employee relationship and was a serious violation of the level of trust expected of the grievant.
The Arbitrator also rejected reliance on grievant's 17 year work record as a basis for mitigation, noting:
A seventeen-year spotless work record would ordinarily carry great weight when considering levels of discipline. There is no doubt Grievant was a highly valued employee who previously did excellent work for the Employer. On the other hand, vast experience can also cut the other way. Based on her seventeen years as a business agent, contract negotiator, and grievance advocate, Grievant was in the best position to recognize the magnitude of the misconduct. Grievant’s assertions that she, “just wasn’t thinking because she was so busy,” ring hollow. The ultimate test of character is doing the right thing even when you believe no one is looking. In this instance, Grievant failed that test.
Pursuant to the parties' cba, the Arbitrator found the conduct of the grievant amounted to "gross misconduct", justifying the termination notwithstanding the absence of progressive discipline.
Arbitrator Beens award can be found here.
Sunday, May 12, 2013
NLRB Defers to Arbitrator's award despite limited remedy
NLRB Acting General Counsel Lafe Solomon has announced his intent to ask the Board to revise its standards for deferring to arbitrators' awards in cases alleging unlawful discrimination because of an employee's union or other protected concerted activity. Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) cases. While the Board has not yet ruled on that request, it has recently reaffirmed its decision to defer unless the arbitrator's award is "clearly repugnant" to the Act.
Sheds Jacksonville Medical Center, Inc. involved a claim that the employer had unlawfully dismissed an employee because of her activity on behalf of the Union representing the Center's employees. The employee had been dismissed after the employer concluded that she had distributed a Union flyer on work time and in work areas. The employer claimed that the flyer called for an unauthorized work stoppage. An unfair labor practice charge was filed but the processing of the charge was deferred to the grievance/arbitration procedures. The Union grieved the dismissal, and Arbitrator Richard Potter concluded that while the employee had distributed the flyer on duty time and in a work area as alleged, the Medical Center's enforcement of its no distribution policy was lax, the flyer did not call for a job action, and that the activity was brief and casual and did not require her to sign out for Union duties. However, because he concluded that the employee had lied about the distribution, both during the Medical Center's investigation and at the hearing he ordered her reinstated without back pay.
The Acting General Counsel issued a complaint on the ulp charge and asserted that the deferral to the arbitrator's award was unwarranted. The ALJ disagreed and dismissed that portion of the complaint. On appeal, the Board affirmed the ALJ's decision.The Board expressly declined to consider the Acting General Counsel's request to modify it deferral standards at this time. Applying its traditional standard, it noted that the proceeding was fair and regular, that the parties had agreed to be bound, and that the issue before the Arbitrator was factually parallel to that in the ULP proceeding. The only remaining question was whether the award was "clearly repugnant" to the Act. Addressing the issue of the Arbitrator's decision not to award back pay, the Board observed:
As a general matter, the mere fact that an arbitration award is not coextensive with the Board’s usual remedies does not, without more, make the award clearly repugnant to the Act. ... More specifically, an award that reinstates an employee without full backpay and accrued benefits is not necessarily inconsistent with the Act. Indeed, the Board itself has, at times, decided not to grant those
remedies where doing so would not effectuate the policies of the Act.
The Board noted that while the employee's lie during the employer's investigation might arguably be protected, a lie during the arbitration hearing clearly was not. It concluded:
In making the latter observation, we are mindful that the arbitrator did not state whether he would have denied Palmer backpay based only on her lie at the arbitration hearing, and, from the record before us, it is not possible to say definitively that the arbitrator denied Palmer backpay for conduct at the hearing that was completely unrelated to her arguably protected conduct. Our established policy, however, is to defer to arbitration decisions unless they are “not susceptible to an interpretation consistent with the Act.” Olin, 268 NLRB at 574. Because the arbitrator’s award can be interpreted in a way consistent with the Act (i.e., that backpay was denied because Palmer lied under oath), we find that the arbitrator’s denial of backpay and credit for time lost does not make the award repugnant to the Act. [footnote omitted].
The Board left for another day a decision on the Acting General Counsel's request to modify its deferral procedures.
Sheds Jacksonville Medical Center, Inc. involved a claim that the employer had unlawfully dismissed an employee because of her activity on behalf of the Union representing the Center's employees. The employee had been dismissed after the employer concluded that she had distributed a Union flyer on work time and in work areas. The employer claimed that the flyer called for an unauthorized work stoppage. An unfair labor practice charge was filed but the processing of the charge was deferred to the grievance/arbitration procedures. The Union grieved the dismissal, and Arbitrator Richard Potter concluded that while the employee had distributed the flyer on duty time and in a work area as alleged, the Medical Center's enforcement of its no distribution policy was lax, the flyer did not call for a job action, and that the activity was brief and casual and did not require her to sign out for Union duties. However, because he concluded that the employee had lied about the distribution, both during the Medical Center's investigation and at the hearing he ordered her reinstated without back pay.
The Acting General Counsel issued a complaint on the ulp charge and asserted that the deferral to the arbitrator's award was unwarranted. The ALJ disagreed and dismissed that portion of the complaint. On appeal, the Board affirmed the ALJ's decision.The Board expressly declined to consider the Acting General Counsel's request to modify it deferral standards at this time. Applying its traditional standard, it noted that the proceeding was fair and regular, that the parties had agreed to be bound, and that the issue before the Arbitrator was factually parallel to that in the ULP proceeding. The only remaining question was whether the award was "clearly repugnant" to the Act. Addressing the issue of the Arbitrator's decision not to award back pay, the Board observed:
As a general matter, the mere fact that an arbitration award is not coextensive with the Board’s usual remedies does not, without more, make the award clearly repugnant to the Act. ... More specifically, an award that reinstates an employee without full backpay and accrued benefits is not necessarily inconsistent with the Act. Indeed, the Board itself has, at times, decided not to grant those
remedies where doing so would not effectuate the policies of the Act.
The Board noted that while the employee's lie during the employer's investigation might arguably be protected, a lie during the arbitration hearing clearly was not. It concluded:
In making the latter observation, we are mindful that the arbitrator did not state whether he would have denied Palmer backpay based only on her lie at the arbitration hearing, and, from the record before us, it is not possible to say definitively that the arbitrator denied Palmer backpay for conduct at the hearing that was completely unrelated to her arguably protected conduct. Our established policy, however, is to defer to arbitration decisions unless they are “not susceptible to an interpretation consistent with the Act.” Olin, 268 NLRB at 574. Because the arbitrator’s award can be interpreted in a way consistent with the Act (i.e., that backpay was denied because Palmer lied under oath), we find that the arbitrator’s denial of backpay and credit for time lost does not make the award repugnant to the Act. [footnote omitted].
The Board left for another day a decision on the Acting General Counsel's request to modify its deferral procedures.
Sunday, May 5, 2013
Mayor improperly interfered with discipline of Fire Captain
Arbitrator Mark Lurie has issued a decision sustaining a grievance filed by a Fire Captain over his demotion to firefighter. Miami-Dade Fire Captain Brian Beckmann authored a Facebook post concerning the Trayvon Martin case. The post was controversial and he was demoted as a result of it. Miami-Dade Fire Captain Demoted Over Trayvon Martin Post Fights For Old Job.
At the arbitration hearing contesting the demotion, the Fire Chief testified that he had initially determined that a 14 day suspension was an appropriate penalty. However before the discipline was imposed he received a call from the Mayor's office, communicating the Mayor's belief that Beckmann's employment should be terminated. In subsequent conversations, the Mayor and the Fire Chief agreed that Beckmann would be demoted to the position of firefighter. The Chief testified that he did not believe he had the authority to go against the Mayor's wishes.
The Union (IAFF Local 1403) challenged this decision. They argued that the County Administrative Orders, incorporated into the cba, vested the disciplinary decision in the Chief alone and that the Chief's decision was improperly countermanded by the Mayor. Agreeing with the Union, Arbitrator Lurie overturned the demotion, concluding:
In sum, Chief Bryson testified that he had decided to suspend Mr. Beckmann but that Mayor Gimenez instructed him to issue either a discharge or demotion, and that he – Bryson – demoted Mr. Beckmann because he believed that, if he were to do otherwise, he would be fired or have to resign. Asked whether he had “objectively determined” that demotion was appropriate, Chief Bryson conspicuously evaded answering the question; he instead testified “I signed the letter.” Mayor Gimenez did not testify that the decision to demote Mr. Beckmann had been solely Captain Bryson’s, and reiterated that he – Mayor Gimenez – possessed the authority to have made the demotion decision himself. The only testimony in which Mayor Gimenez attributed the demotion decision to Captain Bryson was his statement that, “…we agreed on what the appropriate level should be.” Again, A.O 7-16 states that “Approval of the dismissal or demotion of an employee shall continue to be exercised only by a Department Director.”
The Arbitrator finds the testimony of both Mayor Gimenez and Chief Bryson to have been truthful and credible. Based upon their testimony, the Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent for A.O. 7-3 and A.O. 7-16.
The Arbitrator instead determined that Beckman should serve the 14 day suspension initially determined by the Chief to be appropriate.
Noting the significant public interest in the case, the Arbitrator observed:
... there was substantial public attendance at each day of the arbitration hearing. Most of those present were there to see justice done. The Arbitrator has neither the responsibility nor the authority to do justice. Nor was he engaged for that purpose. His role is to apply the terms of the collective bargaining agreement. Were he to stray from that role in pursuit of justice, the victory would be short-lived; his decision would be overturned by the first reviewing court.
Fire Law blog reports on the case here, and links to the Arbitrator's award here.
At the arbitration hearing contesting the demotion, the Fire Chief testified that he had initially determined that a 14 day suspension was an appropriate penalty. However before the discipline was imposed he received a call from the Mayor's office, communicating the Mayor's belief that Beckmann's employment should be terminated. In subsequent conversations, the Mayor and the Fire Chief agreed that Beckmann would be demoted to the position of firefighter. The Chief testified that he did not believe he had the authority to go against the Mayor's wishes.
The Union (IAFF Local 1403) challenged this decision. They argued that the County Administrative Orders, incorporated into the cba, vested the disciplinary decision in the Chief alone and that the Chief's decision was improperly countermanded by the Mayor. Agreeing with the Union, Arbitrator Lurie overturned the demotion, concluding:
In sum, Chief Bryson testified that he had decided to suspend Mr. Beckmann but that Mayor Gimenez instructed him to issue either a discharge or demotion, and that he – Bryson – demoted Mr. Beckmann because he believed that, if he were to do otherwise, he would be fired or have to resign. Asked whether he had “objectively determined” that demotion was appropriate, Chief Bryson conspicuously evaded answering the question; he instead testified “I signed the letter.” Mayor Gimenez did not testify that the decision to demote Mr. Beckmann had been solely Captain Bryson’s, and reiterated that he – Mayor Gimenez – possessed the authority to have made the demotion decision himself. The only testimony in which Mayor Gimenez attributed the demotion decision to Captain Bryson was his statement that, “…we agreed on what the appropriate level should be.” Again, A.O 7-16 states that “Approval of the dismissal or demotion of an employee shall continue to be exercised only by a Department Director.”
The Arbitrator finds the testimony of both Mayor Gimenez and Chief Bryson to have been truthful and credible. Based upon their testimony, the Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent for A.O. 7-3 and A.O. 7-16.
The Arbitrator instead determined that Beckman should serve the 14 day suspension initially determined by the Chief to be appropriate.
Noting the significant public interest in the case, the Arbitrator observed:
... there was substantial public attendance at each day of the arbitration hearing. Most of those present were there to see justice done. The Arbitrator has neither the responsibility nor the authority to do justice. Nor was he engaged for that purpose. His role is to apply the terms of the collective bargaining agreement. Were he to stray from that role in pursuit of justice, the victory would be short-lived; his decision would be overturned by the first reviewing court.
Fire Law blog reports on the case here, and links to the Arbitrator's award here.
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