A San Antonio police Lieutenant was "indefinitely suspended" by the Department after being charged with violation of several Department rules. The discipline arose from an incident between grievant and a Deputy Constable who was providing security at a local restaurant/bar. The Deputy asserted that after he denied access to grievant because he was carrying a bottle of liquor, grievant identified himself as a San Antonio police officer. After grievant returned the bottle to a limo he and his companions had hired for the evening he returned to the door where the Deputy again denied entry because grievant appeared intoxicated. The Deputy claimed that grievant then let loose a string of racial slurs, identified himself as an SAPD Captain, and claimed he would "have his badge and gun". The Deputy notified his supervisor and also called SAPD.
After an investigation of the incident by Internal Affairs, grievant was charged with drinking while off duty in violation of a rule prohibiting drinking "to an extent which renders him unfit to report to duty." He was also charged with violating a Department rule providing "Members, whether on-duty or off-duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach and discredit on themselves or the Department". Finally, grievant was charged with "untruthfulness". Specifically "Since [grievant] is in fact not a captain, his statement was untruthful and [grievant] was also subsequently untruthful during the investigation into this incident when he denied having made any threatening and racist statements to Deputy Ahumada".
Arbitrator William McKee rejected a portion of the charge related to off duty drinking. In agreement with the Union, he found the "unfit to report to duty" standard untenably vague. He did conclude, however, that grievant was intoxicated in public in violation of the rules. He also found that the evidence supported the charge that grievant had used "inappropriate, abusive and intimidating language" in his interaction with the Deputy and that grievant's conduct demonstrated a lack of sound judgement.
With regard to the untruthfulness allegations, Arbitrator McKee found the first charge, relating to the alleged misrepresentation of grievant's rank, unsupported by the evidence. Concerning the allegation that the grievant had "untruthfully" denied using abusive and inappropriate language, the Arbitrator concluded:
In a very technical sense, any factual determination that the complainant's version of events is more credible than the officer/appellant's could also be construed as a determination that the officer/appellant was untruthful. However, many arbitrators, including myself are reluctant to sustain a charge of untruthfulness based solely on the fact that an appellant denied the charges and put a city and department to its proof. I recognize the City's position that officers are required to be truthful at all times, but I am also aware that there is a distinction between making an affirmative misrepresentation, which sends an investigation off on a 'wild goose chase' or incurs unnecessary investigative costs, and simply declining to admit the wrongdoing of which the officer is accused.
The Arbitrator noted that it was "common" for officers involved in a disciplinary suspension to respond with a blanket denial of charges, and that "[t]here may be other reasons for an officer who has been charged with serious violations to deny those charges, not the least of which is the possibility that further investigation will produce different facts than were known originally".
In light of his conclusions, Arbitrator McKee reduced the indefinite suspension to 45 days.
The San Antonio Express News reports on the case Officer wins appeal of firing; IA criticized and links to Arbitrator McKee's award here.
Sunday, June 30, 2013
Sunday, June 23, 2013
Plain meaning, conflicting contract terms and supervisors performing bargaining unit work
Arbitrator Linda Klibanow has issued an award in a case involving the Los Angeles Times and GCC/IBT Local 140-N. The dispute arose from a claim that the newspaper violated its cba by having supervisors perform bargaining unit work.
The cba provided: "Section 2.2 Work Assignments. Any work that can be assigned to bargaining unit employees may also be assigned or reassigned at any time to be performed by other employees, supervisors or managers or persons outside the bargaining unit at the sole discretion of the Employer. The assignment of work or functions to bargaining unit employees shall not be construed as conferring exclusive jurisdiction over same to either the Union or members of the bargaining unit. The Employer shall not use Section 2.2 for the sole purpose of replacing bargaining unit employees and Employer shall not use Section 2.2 for the sole purpose of avoiding the 'Recall' language under Section 11.6 of this contract."
The Union claimed that it had been assured during negotiations that supervisors would perform bargaining unit work only in emergency or "oddball" situations. The employer denied that supervisors were ever assigned to perform bargaining unit work and claimed that the Union was attempting to rewrite the agreement.
In response to the Employer's argument that the plain meaning of the language of the agreement privileged its actions, Arbitrator Klibanow noted:
If the pertinent terms of the bargaining agreement are plain and clear, there is no occasion to resort to interpretation but where plausible contentions may be made for conflicting interpretations, the contractual terms will be deemed ambiguous and the arbitrator must resort to interpretation and may consider extrinsic evidence in so doing. Inclusion of inconsistent provisions in a contract results in contractual ambiguity, necessitating resort to principles of contract interpretation and, if available, extrinsic evidence clarifying the terms at issue.
Applying that standard to this cba, Arbitrator Klibanow found an inconsistency between the language authorizing the employer to assign work at its "sole discretion" and the restrictions on assignment of work for "the sole purpose of replacing unit employees" or "avoiding recall". Accordingly she rejected the employer's "plain meaning" position.
Turning to the merits, the Arbitrator found the evidence established that supervisors had "relieved" press operators on their rest periods, performing unit duties during the break, relieved press operators on their meal breaks, and "pitched in" to improve efficiency.
Finding this conduct violative of the contract, Arbitrator Klibanow determined:
In the absence of supervisors relieving for breaks, "pitching in," and "helping out," at what exact point a unit employee might have been recalled, is not, answered by the record. Via efficiency and crew staffing standards, however, management has implemented a system in which supervisory performance is an integral (consistent) component of unit work. Savings on unit personnel wages is accomplished through incorporation of unit member job duties within the supervisor's job description. The arbitrator, thus, concludes from the evidentiary record that management's efficiency expectations, as communicated to the pressroom supervisory staff, has been such that supervisors could not meet those expectations without regularly performing significant pressroom crew duties themselves. Such consolidation of work responsibilities is a form of job replacement, violative of Section 2.2. [emphasis in original]
While finding the evidence insufficient to order a monetary remedy, the Arbitrator ordered the paper to "cease and desist" violating the cba.
The GCC/IBT Local 140-N's blog links to Arbitrator Klibanow's award here.
Update: A District Court has overturned Arbitrator Klibanow's award. The court's decision is discussed here.
The cba provided: "Section 2.2 Work Assignments. Any work that can be assigned to bargaining unit employees may also be assigned or reassigned at any time to be performed by other employees, supervisors or managers or persons outside the bargaining unit at the sole discretion of the Employer. The assignment of work or functions to bargaining unit employees shall not be construed as conferring exclusive jurisdiction over same to either the Union or members of the bargaining unit. The Employer shall not use Section 2.2 for the sole purpose of replacing bargaining unit employees and Employer shall not use Section 2.2 for the sole purpose of avoiding the 'Recall' language under Section 11.6 of this contract."
The Union claimed that it had been assured during negotiations that supervisors would perform bargaining unit work only in emergency or "oddball" situations. The employer denied that supervisors were ever assigned to perform bargaining unit work and claimed that the Union was attempting to rewrite the agreement.
In response to the Employer's argument that the plain meaning of the language of the agreement privileged its actions, Arbitrator Klibanow noted:
If the pertinent terms of the bargaining agreement are plain and clear, there is no occasion to resort to interpretation but where plausible contentions may be made for conflicting interpretations, the contractual terms will be deemed ambiguous and the arbitrator must resort to interpretation and may consider extrinsic evidence in so doing. Inclusion of inconsistent provisions in a contract results in contractual ambiguity, necessitating resort to principles of contract interpretation and, if available, extrinsic evidence clarifying the terms at issue.
Applying that standard to this cba, Arbitrator Klibanow found an inconsistency between the language authorizing the employer to assign work at its "sole discretion" and the restrictions on assignment of work for "the sole purpose of replacing unit employees" or "avoiding recall". Accordingly she rejected the employer's "plain meaning" position.
Turning to the merits, the Arbitrator found the evidence established that supervisors had "relieved" press operators on their rest periods, performing unit duties during the break, relieved press operators on their meal breaks, and "pitched in" to improve efficiency.
Finding this conduct violative of the contract, Arbitrator Klibanow determined:
In the absence of supervisors relieving for breaks, "pitching in," and "helping out," at what exact point a unit employee might have been recalled, is not, answered by the record. Via efficiency and crew staffing standards, however, management has implemented a system in which supervisory performance is an integral (consistent) component of unit work. Savings on unit personnel wages is accomplished through incorporation of unit member job duties within the supervisor's job description. The arbitrator, thus, concludes from the evidentiary record that management's efficiency expectations, as communicated to the pressroom supervisory staff, has been such that supervisors could not meet those expectations without regularly performing significant pressroom crew duties themselves. Such consolidation of work responsibilities is a form of job replacement, violative of Section 2.2. [emphasis in original]
While finding the evidence insufficient to order a monetary remedy, the Arbitrator ordered the paper to "cease and desist" violating the cba.
The GCC/IBT Local 140-N's blog links to Arbitrator Klibanow's award here.
Update: A District Court has overturned Arbitrator Klibanow's award. The court's decision is discussed here.
Sunday, June 16, 2013
Public policy, professors and firefighters
Two recent cases reach differing results in addressing requests to set aside arbitration awards as contrary to public policy.
In Slippery Rock University of Pennsylvania, PSSHE v. Association of PA State College and University Faculty the Commonwealth Court of Pennsylvania reversed an arbitrator's award reinstating a tenured professor who had been dismissed after allegedly engaging in inappropriate and offensive conduct toward University students while on a spring break trip to Spain.
The arbitrator sustained a grievance over the dismissal, concluding that the professor had not been provided with a "complaint" within the meaning of the cba. The Court rejected the arbitrator's analysis, finding it had no support in the cba. Separately, however, it found that reinstatement of the professor would violate the State's public policy. The Court noted:
Given that the transgressions at issue in the subject grievance are of a sexual nature perpetrated against a student(s) at one of the Commonwealth’s universities within the PASSHE by an individual who was not only a full professor but also a department chair, we must reject the arbitration award on compelling public policy grounds. The clearly established public policy and duty to protect students from sexual discrimination in any form has long been recognized.[fn]
[fn] In rejecting this arbitration award on the additional basis of public policy, we note that the award was rendered in the wake of the events that have engulfed another Commonwealth university within PASSHE for alleged failure to properly heed and respond to prior warnings of egregious sexual misconduct. While the incident in the matter at hand is not of the same nature, it is nonetheless another instance of misconduct of a sexual manner involving someone in a position of trust and responsibility over students at a Commonwealth university.
Independent of its finding that the award did not draw its essence from the cba, the Court found that the award reinstating the Professor with full back pay despite what it believed to be undisputed evidence of misconduct "prevents the University from properly implementing its policy prohibiting such behavior."
In another case, involving the dismissal of a firefighter-paramedic, the Ohio Court of Appeals rejected the public policy arguments of the employer. In its decision in City of North Royalton v. Robert Ulrich, et al. the Court affirmed the arbitrator's decision reinstating the grievant. Grievant had responded to an overdose scene and treated and transported the patient. While initially telling the dispatcher that all drugs and drug paraphernalia had been flushed down the toilet, he subsequently reported to the police that he discovered a packet containing drugs in the ambulance and believed that it had fallen out of the patient's pants. An investigation revealed that in fact grievant had removed the drugs from the scene and placed them in the ambulance. Grievant was dismissed, but an arbitrator ordered his reinstatement without back pay.
The City sought to set aside the award, arguing that reinstatement of a firefighter who falsified a police report was contrary to public policy.
Rejecting this claim, the Court acknowledged that it had previously held that reinstatement of a police officer who falsified a report was contrary to public policy, but held that the same standard did not apply to firefighters. Explaining the distinction, the Court observed:
In Slippery Rock University of Pennsylvania, PSSHE v. Association of PA State College and University Faculty the Commonwealth Court of Pennsylvania reversed an arbitrator's award reinstating a tenured professor who had been dismissed after allegedly engaging in inappropriate and offensive conduct toward University students while on a spring break trip to Spain.
The arbitrator sustained a grievance over the dismissal, concluding that the professor had not been provided with a "complaint" within the meaning of the cba. The Court rejected the arbitrator's analysis, finding it had no support in the cba. Separately, however, it found that reinstatement of the professor would violate the State's public policy. The Court noted:
Given that the transgressions at issue in the subject grievance are of a sexual nature perpetrated against a student(s) at one of the Commonwealth’s universities within the PASSHE by an individual who was not only a full professor but also a department chair, we must reject the arbitration award on compelling public policy grounds. The clearly established public policy and duty to protect students from sexual discrimination in any form has long been recognized.[fn]
[fn] In rejecting this arbitration award on the additional basis of public policy, we note that the award was rendered in the wake of the events that have engulfed another Commonwealth university within PASSHE for alleged failure to properly heed and respond to prior warnings of egregious sexual misconduct. While the incident in the matter at hand is not of the same nature, it is nonetheless another instance of misconduct of a sexual manner involving someone in a position of trust and responsibility over students at a Commonwealth university.
Independent of its finding that the award did not draw its essence from the cba, the Court found that the award reinstating the Professor with full back pay despite what it believed to be undisputed evidence of misconduct "prevents the University from properly implementing its policy prohibiting such behavior."
In another case, involving the dismissal of a firefighter-paramedic, the Ohio Court of Appeals rejected the public policy arguments of the employer. In its decision in City of North Royalton v. Robert Ulrich, et al. the Court affirmed the arbitrator's decision reinstating the grievant. Grievant had responded to an overdose scene and treated and transported the patient. While initially telling the dispatcher that all drugs and drug paraphernalia had been flushed down the toilet, he subsequently reported to the police that he discovered a packet containing drugs in the ambulance and believed that it had fallen out of the patient's pants. An investigation revealed that in fact grievant had removed the drugs from the scene and placed them in the ambulance. Grievant was dismissed, but an arbitrator ordered his reinstatement without back pay.
The City sought to set aside the award, arguing that reinstatement of a firefighter who falsified a police report was contrary to public policy.
Rejecting this claim, the Court acknowledged that it had previously held that reinstatement of a police officer who falsified a report was contrary to public policy, but held that the same standard did not apply to firefighters. Explaining the distinction, the Court observed:
In recognizing that a clear
public policy existed in prohibiting the reinstatement of police officers who
falsified reports, the Fourth District specifically emphasized that the statute
recognizes that “the police force of a municipal corporation is obligated to ‘preserve
the peace, protect persons and property, and obey and enforce * * * all
criminal laws of the states and the United States.” … The court further
recognized that “honesty is vital to the effective performance of these duties
and to ensuring public trust and confidence in the police force.” …
These same considerations, however, do not apply to a firefighter–paramedic nor
are they delineated under the statute with respect to firefighters.
Thus, while we certainly do not condone
dishonesty and recognize that it is disfavored in the workplace, we
cannot say that a dominant, well-defined public policy exists that all acts of
dishonesty warrant immediate termination of a firefighter– paramedic’s
employment. We likewise cannot say that a clear public policy precludes the
reinstatement of a firefighter– paramedic who has provided inaccurate written
reports or a false witness statement to the police. Accordingly, we find no
merit to the City’s claim that the trial court erred in failing to vacate the
arbitrator’s award as being against public policy.
Sunday, June 9, 2013
Facebook posting exacerbates misconduct, Arbitrator upholds termination
On February 21, 2013 a Bethlehem, PA firefighter notified the Department that he would be using sick leave the following day. Pursuant to the cba between the City of Bethlehem and the International Association of Firefighters, Local 735, employees utilizing sick leave "are required to remain in their homes for rest and recuperation." They were authorized to leave home only for healthcare related appointments or activities relating to treatment of their illness or for family emergencies. Notwithstanding this provision, the firefighter left his home on the 22nd to attend a local fair, and posted pictures from the fair on Facebook. He also visited a political tent at the fair.
The firefighter also called in sick on the 23d. He left his home that day to go to a pharmacy to fill a prescription. On his way, however, he stopped at a local firehouse. After picking up the prescription, he went to a local bar/restaurant. After leaving the bar he was involved in a serious accident and it was determined that his blood alcohol content was more than three times the legal limit. Following an investigation his employment was terminated.
At arbitration the City acknowledged that it would not have terminated grievant simply for leaving his home on the 22nd and 23rd, but "considered his entire course of conduct" in concluding that he had violated both the cba and the City's Code of Ethics. It also acknowledged that it would not have terminated his employment solely for a DUI arrest, but again noted that the termination was for the entire course of conduct.
Arbitrator Walt De Treux denied the grievance and found that the City had just cause for its actions.
Initially Arbitrator De Treux concluded that Grievant had not only disregarded the contract's restrictions on leaving home while on sick leave, but he had advertised his disregard by his Facebook postings. The Arbitrator noted:
[Grievant] was terminated for both sick leave violation and the conduct in which he engaged while away from his home that brought discredit to [Grievant] and the City in violation of the Code of Ethics. As noted, the sick leave violations-leaving home- would warrant discipline significantly less than discharge, perhaps a warning or minimal; suspension. But [Grievant] left his home on August 22, and as the City describes it , he 'documented and advertised' his travels by posting pictures of the fair on Facebook and visiting the political tent. In so doing he showed utter disregard for the contractual command to remain home while on sick leave. It is one level of violation if he went to a neighbor's house or attended a sporting event for a child, but the Grievant escalated the severity of the violation by documenting and advertising his activities.
Arbitrator De Treux also found Grievant's actions on the 23d continued to demonstate a "blatant disregard" for the contractual obligation to remain at home while on sick leave. The Arbitrator distinguished other cases in which off duty employees with DUI arrests were not dismissed, finding that Grievant was not "off duty" in the traditional sense but was receiving sick leave benefits on the condition that he remain at home. The Arbitrator concluded that the conduct engaged in by the Grievant was more similar to that involving an on duty employee.
Finally, the Arbitrator rejected the Union's reliance on Grievant's 17 years with the Department as a reason to reduce the discipline, observing that this was one of the "uncommon" cases where Grievant's experience weighed against him. Arbitrator De Treux determined "[a]s a long term employee and a former union official, [Grievant] knew or should have known the responsibility to adhere to the contract and Code of Ethics and the consequences of abdicating that responsibility."
A slightly redacted copy of the Arbitrator's award can be found here.
The firefighter also called in sick on the 23d. He left his home that day to go to a pharmacy to fill a prescription. On his way, however, he stopped at a local firehouse. After picking up the prescription, he went to a local bar/restaurant. After leaving the bar he was involved in a serious accident and it was determined that his blood alcohol content was more than three times the legal limit. Following an investigation his employment was terminated.
At arbitration the City acknowledged that it would not have terminated grievant simply for leaving his home on the 22nd and 23rd, but "considered his entire course of conduct" in concluding that he had violated both the cba and the City's Code of Ethics. It also acknowledged that it would not have terminated his employment solely for a DUI arrest, but again noted that the termination was for the entire course of conduct.
Arbitrator Walt De Treux denied the grievance and found that the City had just cause for its actions.
Initially Arbitrator De Treux concluded that Grievant had not only disregarded the contract's restrictions on leaving home while on sick leave, but he had advertised his disregard by his Facebook postings. The Arbitrator noted:
[Grievant] was terminated for both sick leave violation and the conduct in which he engaged while away from his home that brought discredit to [Grievant] and the City in violation of the Code of Ethics. As noted, the sick leave violations-leaving home- would warrant discipline significantly less than discharge, perhaps a warning or minimal; suspension. But [Grievant] left his home on August 22, and as the City describes it , he 'documented and advertised' his travels by posting pictures of the fair on Facebook and visiting the political tent. In so doing he showed utter disregard for the contractual command to remain home while on sick leave. It is one level of violation if he went to a neighbor's house or attended a sporting event for a child, but the Grievant escalated the severity of the violation by documenting and advertising his activities.
Arbitrator De Treux also found Grievant's actions on the 23d continued to demonstate a "blatant disregard" for the contractual obligation to remain at home while on sick leave. The Arbitrator distinguished other cases in which off duty employees with DUI arrests were not dismissed, finding that Grievant was not "off duty" in the traditional sense but was receiving sick leave benefits on the condition that he remain at home. The Arbitrator concluded that the conduct engaged in by the Grievant was more similar to that involving an on duty employee.
Finally, the Arbitrator rejected the Union's reliance on Grievant's 17 years with the Department as a reason to reduce the discipline, observing that this was one of the "uncommon" cases where Grievant's experience weighed against him. Arbitrator De Treux determined "[a]s a long term employee and a former union official, [Grievant] knew or should have known the responsibility to adhere to the contract and Code of Ethics and the consequences of abdicating that responsibility."
A slightly redacted copy of the Arbitrator's award can be found here.
Sunday, June 2, 2013
Arbitrator rejects "collective responsibility" theory; just cause requires individualized proofs
The desire of Carney Hospital to fix what it deemed to be a dysfunctional and unsafe pediatric psychiatry unit by replacing all current personnel failed to meet the contractual requirement of just cause for six of those terminated employees, according to an award by Arbitrator Phillip Dunn.
After a number of incidents occurred in the unit within a short period of time, the hospital conducted an investigation of the unit, and arranged for an investigation by outside counsel. The outside investigation concluded that "...we agree with several of those interviewed that the only way to reform the unit was to 'blow it up and start anew....' The investigation determined that there was a culture in the unit that promoted mediocrity, and that there was a "code of silence" existing among the staff. The outside investigation recommended that the hospital replace all current personnel in the unit.
Following receipt of the report, the hospital dismissed 13 RNs and all of the mental health counsellors assigned to the unit. Grievances were filed on behalf of all of the RNs, and six of those cases were consolidated before Arbitrator Dunn.
The hospital argued that the case was one involving "collective guilt and responsibility." It maintained that a culture of mediocrity had developed in the unit which would have been impossible for any of the staff to ignore. It further noted that because of a culture of silence, while "there may not be detailed evidence of particular incidents of misconduct by any of the six grievants" beyond their claimed failure to address the inadequate care, the hospital had just cause to terminate the six grievants because of their "collective culpability."
The Massachusetts Nurses Association asserted that there was no evidence of any misconduct on the part of the grievants warranting termination, that they had been denied due process by the hospital's failure to notify them of their alleged deficiencies, and that, in any event, any misconduct should have been subject to progressive discipline.
Granting the Union's request for a directed verdict at the end of the hospital's case, Arbitrator Dunn agreed with MNA, and sustained the grievances. In doing so he noted:
I agree with the Union that the concept of collective guilt and responsibility does not suffice to establish just cause to terminate any particular member of the group, at least in the absence of convincing proof that the individual member personally committed the alleged misconduct for which accusations were leveled at the group as a collective body. It is wrong, and inherently and fundamentally inconsistent with the contractual standard of just cause, to terminate the innocent along with others who may be guilty, even if enough of the guilty members in the group may have committed misdeeds with such regularity such that the overall performance of the group is remarkably deficient. The burden of proof that an employer must meet in a just cause case carries with it a presumption of innocence, which is only defeated by a convincing showing that the presumptively innocent employee in fact has personally committed misconduct justifying disciplinary action.
Arbitrator Dunn further found the lack of due process in this case "stunning", and determined that this lack of due process added support to the conclusion that the terminations were without just cause.
He ordered the hospital to reinstate (with back pay) the grievants to their former positions in the pediatric psych unit, but allowed the hospital to stagger their return so they could be blended with the replacement staff.
The hospital has filed a complaint seeking to vacate the award as contrary to public policy.
The Dorchester Reporter reports on the dispute Carney sues to block arbitrator's ruling it rehire six nurses in once troubled adolescent-psych unit, and links to Arbitrator Dunn's award here and the hospital's complaint here.
After a number of incidents occurred in the unit within a short period of time, the hospital conducted an investigation of the unit, and arranged for an investigation by outside counsel. The outside investigation concluded that "...we agree with several of those interviewed that the only way to reform the unit was to 'blow it up and start anew....' The investigation determined that there was a culture in the unit that promoted mediocrity, and that there was a "code of silence" existing among the staff. The outside investigation recommended that the hospital replace all current personnel in the unit.
Following receipt of the report, the hospital dismissed 13 RNs and all of the mental health counsellors assigned to the unit. Grievances were filed on behalf of all of the RNs, and six of those cases were consolidated before Arbitrator Dunn.
The hospital argued that the case was one involving "collective guilt and responsibility." It maintained that a culture of mediocrity had developed in the unit which would have been impossible for any of the staff to ignore. It further noted that because of a culture of silence, while "there may not be detailed evidence of particular incidents of misconduct by any of the six grievants" beyond their claimed failure to address the inadequate care, the hospital had just cause to terminate the six grievants because of their "collective culpability."
The Massachusetts Nurses Association asserted that there was no evidence of any misconduct on the part of the grievants warranting termination, that they had been denied due process by the hospital's failure to notify them of their alleged deficiencies, and that, in any event, any misconduct should have been subject to progressive discipline.
Granting the Union's request for a directed verdict at the end of the hospital's case, Arbitrator Dunn agreed with MNA, and sustained the grievances. In doing so he noted:
I agree with the Union that the concept of collective guilt and responsibility does not suffice to establish just cause to terminate any particular member of the group, at least in the absence of convincing proof that the individual member personally committed the alleged misconduct for which accusations were leveled at the group as a collective body. It is wrong, and inherently and fundamentally inconsistent with the contractual standard of just cause, to terminate the innocent along with others who may be guilty, even if enough of the guilty members in the group may have committed misdeeds with such regularity such that the overall performance of the group is remarkably deficient. The burden of proof that an employer must meet in a just cause case carries with it a presumption of innocence, which is only defeated by a convincing showing that the presumptively innocent employee in fact has personally committed misconduct justifying disciplinary action.
Arbitrator Dunn further found the lack of due process in this case "stunning", and determined that this lack of due process added support to the conclusion that the terminations were without just cause.
He ordered the hospital to reinstate (with back pay) the grievants to their former positions in the pediatric psych unit, but allowed the hospital to stagger their return so they could be blended with the replacement staff.
The hospital has filed a complaint seeking to vacate the award as contrary to public policy.
The Dorchester Reporter reports on the dispute Carney sues to block arbitrator's ruling it rehire six nurses in once troubled adolescent-psych unit, and links to Arbitrator Dunn's award here and the hospital's complaint here.
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