Sunday, August 25, 2013

Two APWU Awards

Arbitrators have recently issued awards in two USPS/APWU cases.

In the first, Arbitrator Stephen Goldberg interpreted the language of the parties' cba that provided for payment of a higher starting salary to certain Postal Service employees "with the concurrence of the Union" when an increase was necessary for recruitment or retention.The dispute arose when the Postal Service approached the Union seeking their concurrence and, according to the Postal Service, the Union made an unrelated demand as a condition of their concurrence. USPS maintained that the Union could only negotiate concerning the amount of the proposed increase. APWU maintained that nothing in the Agreement precluded it from conditioning its concurrence on issues other than those related to the amount of the hourly rate proposed.

After reviewing the language, and the bargaining history, Arbitrator Goldberg reached a conclusion somewhat between the positions taken by the parties. The Arbitrator determined:

 Since the disputed language was proposed by the Union to serve Union interests, Union concurrence was not likely to have been viewed by the Union as limited to the narrow question of the amount of the proposed PSE wage increase, but could logically include other matters related to the Postal Service's proposal. Similarly, because the core issue dealt with by the disputed sentence is PSE wage rates, it is wholly unlikely that the Postal Service would have agreed to give the Union a blank check to condition its concurrence on grounds wholly unrelated to the PSE wage rates under consideration. Accordingly, I conclude that the Union may condition its concurrence on a Postal Service proposal to increase PSE wage rates solely upon matters reasonably related to the Postal Service's proposal, including, but not limited to, the amount of the proposed increase. 

In the second case, Arbitrator Shyman Das was called upon to interpret language first include in the parties' 2006 Agreement. The issue before Arbitrator Das was whether language referencing a notice requirement for subcontracting decisions made at the "Field level" included run of the mill work contracted at the local level. The Postal Service maintained it did not intend the meaning attributed to the language by the Union. Arbitrator Das rejected this position, concluding:

The record in this case includes Article 32 Due Consideration Worksheets routinely completed
at the local level when a decision is made at that level to contract out what the Postal Service
characterizes as "run of the mill" work. Therefore, even taking the SIAG guidelines into account, the evidence does not support the Postal Service's argument that the Union had reason to know of the interpretation the Postal Service asserts it attached to the term "Field level" in Article 32.1.C during the 2006 negotiations, and, objectively, it must be concluded that the term "Field level" as used in that provision includes local, as well as district and area decision making.

     Accordingly, the Union's position in this case that Article 32.1.C requires notification to the local union of decisions to subcontract bargaining unit work at local installations made at the local, as well as district or area, level is sustained.

APWU links to the award of Arbitrator Goldberg here, and the award of Arbitrator Das here.

Sunday, August 18, 2013

Off duty conduct, credibility and progressive discipline

Arbitrator Clarence Rogers has upheld the dismissal of a police officer who had allegedly attempted to report to work under the influence of alcohol. In doing so he discussed several topics he considered in making his decision.

Grievant had been out with friends on the evening before Thanksgiving. She was drinking, and a coworker called the officer in charge to report what he had observed. The OIC called grievant to remind her she was scheduled to work a voluntary overtime dispatch shift beginning at 3 a.m.  Grievant explained that she erroneously believed she was scheduled for the following night and had been drinking and would be unable to make the dispatch shift. Grievant was also scheduled to report for her normal tour at 7 amThanksgiving day. The OIC reported the incident to the Chief. The OIC also reported that grievant had been observed operating her vehicle by another officer, who arranged to drive her home. The Chief went to grievant's house shortly before 7 a.m. He observed grievant in full uniform, with her firearm, getting into a vehicle. After asking her what had happened the previous evening, he directed her to remove her firearm and arranged transportation for a drug/alcohol test. The test showed a blood alcohol content of .139. Grievant's employment was terminated and the case was ultimately submitted to arbitration.

At the hearing, the Chief agreed that grievant was neither on duty nor on township property at the time she was sent to be tested. Grievant testified that she had been entering a friend's vehicle to use the cell phone to report off work when the Chief observed her.

Initially, Arbitrator Rogers noted:

The general rule is that an employer has no right to use its disciplinary power to regulate the lives and conduct of its employees outside the workplace. There are some generally accepted exceptions to this principle. The dividing line is the employer's legitimate business interest and the employee's right to privacy.1
1The standards were first articulated by Arbitrator Louis C. Kesselman in W.E. Caldwell Co., 28 LA 435, 436-37 (1957), where he held that discharge for conduct away from the work place is impermissible unless: 1) behavior harms Company's reputation or product. 2) behavior renders employee unable to perform his duties.. 3) behavior leads to refusal, reluctance or inability of other employees to work with him ...

He noted, however, that off duty activity committed against the public, in public places, "requires special scrutiny," and that public employees, particularly those engaged in law enforcement, are held to an even higher standard. A law enforcement official who violates the law "destroys public confidence in law enforcement, demoralizes the entire enforcement agency, and brings discredit to his/her employer."

Assessing credibility, the Arbitrator rejected grievant's explanation that she was going to the car to call out from work. He noted that grievant was in full uniform, with a firearm, and did not immediately tell the Chief of her plan to call out. Had she intended to call out she would, he believed, have said so at the time.

The arbitrator further noted that while grievant had no prior discipline related to alcohol use, her prior record did not help her situation. He observed:

Progressive discipline is good employment relations practice, since it can correct bad performance and preserve a satisfactory employment relationship that benefits the employer and employee. Grievant has been progressively disciplined in the past. However, when an employee's misconduct is so severe that continued employment would undermine an employer's ability to function effectively, discharge is deemed appropriate. This is true even if the employee has received no similar discipline; and is unlikely to repeat the offense. Discharge serves the legitimate purpose of deterring other employees from engaging in such conduct. See e.g. Freemen United Coal Co., 82 LA 861, 866.

Based on the totality of the circumstances, the Arbitrator determined that grievant's actions justified the township's decision and that the discharge was for just cause.

Arbitrator Rogers' award in FOP Ohio Labor Council and Perkins Township can be found here.

Sunday, August 11, 2013

Court: Arbitrator can compel employee to resign

Grievant was a police sergeant with the Trenton, OH police department. His employment was terminated for events relating to his issuing a traffic citation to the wife of a firefighter from a neighboring community. After the citation was voided by the Lieutenant, grievant sent a "clearly sarcastic" email to him and complained to the Chief. According to the Chief and Lieutenant, grievant was instructed to take no further action until a meeting among them could be scheduled. Nevertheless grievant went to the home of the individual to whom he had initially issued the ticket and reissued it. He also spoke with the firefighter-husband, telling him that the Lieutenant's action in voiding the ticket was unlawful and that he may face criminal charges. Grievant also investigated the Lieutenant's use of an impounded vehicle using a law enforcement data base and meet with the County prosecutor while on duty. After a hearing grievant was deemed to have violated the Department's Code of Conduct and his employment was terminated. The Ohio PBA filed a grievance and pursued the case to arbitration.

The arbitrator determined that grievant's reissuance of the traffic citation was insubordinate and deserving of disciplinary action. She also concluded that the conversation with the firefighter-spouse warranted "some significant disciplinary action." The arbitrator additionally noted that the circumstances leading to the discipline created distrust among the three commanding officers of a small police department. As a result, the Arbitrator concluded:

The grievance is sustained in part and denied in part. [Grievant’s] discipline shall be reduced to a thirty day unpaid suspension but he shall not be reinstated to employment. [Grievant] is awarded back pay from August 20, 2011 to the date of this Award together with benefits and any out of pocket loss as a result of the termination of benefits from the date of his termination to the date of this Award. The termination shall be removed from [grievant's] personnel file and [grievant] will be considered to have resigned from employment effective on the date of this Award.

The Union sought to vacate that portion of the award requiring grievant to involuntarily resign. The City sought to confirm the award. The Court of Common Pleas agreed with the Union, and the City appealed. The Ohio Court of Appeals has reversed and confirmed the Arbitrator's award.

Contrary to the lower court, the Court of Appeals concluded that the award drew its essence from the cba, noting that the cba defined available forms of discipline as written reprimands, suspensions without pay, and discharge. The Court observed:

The arbitrator further concluded that, because of [grievant’s] conduct in relation to his commanding officers, distrust was created within the Police Department that could not be eradicated. In addition, the arbitrator explained the advantages and disadvantages of resignation rather than termination. While the arbitrator determined [grievant’s] conduct warranted him leaving the police department, she did not want to obstruct his future employment in law enforcement. Thus, the arbitrator made one remedial determination, finding that [grievant] should serve a 30-day suspension without pay followed by resignation from employment while having the termination removed from his personnel file.

The court concluded that the arbitrator’s holding that grievant should resign fell within the essence of the cba “which permits the removal of an employee from employment.”

The dissent would have affirmed the lower court, noting "I think it inappropriate to allow an arbitrator the authority to force an employee to resign from employment when an employer does not have this type of power."

The court's opinion in Ohio Patrolmen's Benevolent Association v. City of Trenton can be found here.

Sunday, August 4, 2013

Connecticut Supreme Court: Egregious sexual harassment compels termination, arbitrator's contrary award set aside

"The issue to be decided in this appeal is whether an arbitrator’s award violates public policy when an employer’s decision to dismiss an employee who has engaged in sexual harassment is reduced to a one year suspension without pay." This was the question decided by the Connecticut Supreme Court in State v. AFSCME, Council 4, Local 391.

The dispute arose from the termination of a correctional officer for sexual harassment. The grievant had been accused of making verbal comments to a coworker and touching him, allegedly in front of other employees and inmates. The acts were said to have occurred over an extended period of time.

While finding some of the witnesses may have "stretched the truth", the arbitrator concluded that the accusations were true and were substantiated by the witnesses. The arbitrator also concluded, however, that the offenses were not severe enough to justify termination of employment. Accordingly the termination was reduced to a one year unpaid suspension.

Affirming the lower courts, the Connecticut Supreme Court has determined that the award reinstating the correctional officer is contrary to the public policy against sexual harassment in the workplace. The Court held that the facts as found by the arbitrator compelled the termination of employment. The Court noted:

the grievant knowingly violated the state’s public policy against sexual harassment, as embodied in administrative directive 2.2, and ... his misconduct was both highly egregious and incorrigible. We also emphasize the undisputed fact that the conduct occurred in a prison in the presence of other employees and inmates, where the need for order, discipline and a culture of mutual respect among employees is particularly acute. Accordingly, we conclude that the public policy against sexual harassment in the workplace ‘‘require[d] nothing less than [the grievant’s] termination . . . .’’ Brantley v. New Haven, supra, 100 Conn. App. 863. We simply cannot conclude that ‘‘reasonable people [could] differ as to whether reinstatement or discharge [was] the more appropriate’’ form of discipline for this absolutely deplorable and repeated misconduct ...[footnotes omitted]

The Court also noted that the Union had presented evidence that other employees who engaged in sexual harassment had been disciplined short of termination, but concluded that:

although we must defer to the arbitrator’s factual findings with respect to these incidents, it is ultimately for this court, not the employer, to make the legal determination as to whether a particular form of discipline for a particular incident of employee misconduct complies with the public policy of this state. In other words, the fact that an employer has previously violated a public policy by retaining an employee who should have been dismissed does not alter the public policy or justify additional violations of the public policy.

The dissent would have confirmed the award, observing:

...the decision reached by the majority takes away the discretion of the arbitrator, when the collective bargaining agreement, as in this case, allowed for that very discretion. Further, the rule adopted by the majority effectively grants authority to the state to discharge an employee whenever sexual harassment is established, regardless of the nature of the harassment, thereby undermining the arbitration process voluntarily agreed to by the parties.