Sunday, December 21, 2014

Police officers, "untruthfulness" and public policy

A police officer's claimed "untruthfulness" and the dictates of public policy have been the subject of previous posts here and here. (Discipline for untruthfulness generally is discussed here, here and here.)

The Supreme Court of Connecticut has now addressed this issue. In Town of Stratford v AFSCME Council 15, Local 407 the Court reversed the decision of the Appellate Court and essentially confirmed an arbitration award reinstating a police officer found to have been deceptive during an independent medical exam concerning his fitness to work.

Grievant had been employed by the City for several years. When he was initially hired the City was aware that he had latent epilepsy. It required him to complete a probationary period free from seizures, which he did successfully. In June of 2009 grievant suffered a seizure while driving a police vehicle, striking two parked cars. His personal physician cleared him to return to work, but the City sent him to an independent neurologist for an independent medical evaluation. That ime cleared him to return to work, but in reviewing the records, the City became aware that grievant had failed to inform the examiner that he had suffered two seizures, in 2005 and 2008, and further failed to disclose that he had been abusing alcohol. Presented with this information, the independent examiner concluded that, while he was unsure if grievant could be trusted to avoid activities (primarily alcohol) that might increase his susceptibility to seizures, he presented no greater risk than he had at the time of his initial hire. The City however charged grievant with lying during the ime, and terminated his employment.

An arbitration panel overturned the termination. It concluded that termination was excessive, but did find grievant's misconduct serious and denied any back pay. The City sought to set aside the award as contrary to public policy, but the trial court refused to do so. On appeal, the Appellate Court reversed (in an opinion discussed here) finding:

    the union concedes that [grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [grievant] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.

The Union appealed, and the Supreme Court reversed. Initially, it concluded that there was a public policy "against the employment of law enforcement personnel who have engaged in intentional dishonesty that directly pertains to their qualification and ability to perform official duties." It noted, however, that the next question was whether public policy required termination of grievant's employment. Concluding that it did not, the Court observed:

[Grievant] did not lie under oath and his dishonesty was not disruptive or repeated; he was not dishonest before his fellow police officers or while performing his official duties. He was not warned about the repercussions of his misconduct so he was not incorrigible, and the punishment that he received was severe.

The Court concluded that requiring termination under the facts of this case "would unnecessarily expand "the stringent and narrow confines of [the] exception' to confirming an arbitration award and 'swallow the rule' granting deference to arbitration awards.

The dissent would have upheld the decision vacating the award, observing:

[Grievant's] violation of that trust and confidence, by lying in connection with the independent medical examination, was indeed ‘‘very serious,’’ as the panel observed, because those lies bore directly on his ability to return to work and to safely  perform his duties as a police officer. Short of a violation of the criminal law, it is hard to conceive of misconduct by a police officer that is more serious. Simply stated, when {Grievant] placed his own perceived self-interest over the safety of the community by lying about his fitness to serve, he demonstrated that he is not fit to serve.

Sunday, December 14, 2014

Arbitrator upholds dismissal of police officer for "untruthfulness" concerning DUI stop

FoxTampaBay reports on a recent decision upholding the dismissal of the head of Tampa PD's DUI unit for being deceptive concerning a dui stop. The report discusses the award of Arbitrator John Popular which can be found here.

On January 24, 2013 Grievant received a tip from a friend (Attorney Adam Filthaut) concerning a potential dui scenario. Filthaut was reporting on the conduct of C. Phillip Campbell, an attorney adverse to Filthaut and his firm in a hotly contested local trial. As a result of the tip, grievant assigned two officers to stake out the bar involved and to be on the look out for Campbell. Grievant and Filthaut exchanged thirteen text messages before Campbell was pulled over. Another officer performed the dui tests, and arrested Campbell. Grievant initiated text and phone conversations with Filthaut advising him of the arrest. Exchanges between the two continued into the next day, with grievant asserting that only then did he then became aware of the nature of the relationship between Filthaut and Campbell.

The arrest received media attention and grievant spoke with the Chief on the 24th, but failed to advise him of the extent of his friendship with Filthaut. He acknowledged exchanging a "few" text messages with Filthaut. On the same day, grievant testified in connection with a motion for mistrial in the pending litigation. In his testimony grievant claimed that he had no contact with Filthaut after the arrest. Over the next several months the Department conducted an investigation of grievant's conduct. In March the Chief learned that in fact grievant and Filthaut had exchanged 96 text messages. On September 27, 2013 grievant's employment was terminated for untruthfulness.

The Department's policy on truthfulness, contained in a General Order dated May 6, 1994, provided:

As many of you are aware, under prior departmental administrations, the subject of untruthfulness has generated some controversy as to the appropriate level of discipline to be administered in such cases. This General Order is intended to provide a clear understanding of the Department's views on the seriousness of untruthfulness and the manner in which such cases are and will be handled in the future. The public, as well as myself demand the highest integrity and honesty of police officers....
Therefore, the General Order will confirm that untruthfulness is not tolerated by this Department and it will continue to be treated as among the most serious offenses which an employee can commit. Any sustained incident of untruthfulness of any pending or future cases will be treated in accordance with that philosophy and subject the employee to immediate termination. ...

The termination was grieved, and on September 20, 2014 Arbitrator Popular issued his award. After reviewing the evidence, he concluded:

In the arbitrator's opinion (1) the Grievant became an unwitting accomplice in the collusion of four attorney's attempt to "set up" Mr. Campbell for a DUI arrest, (2) was untruthful about the volume of communications between himself and Mr. Filthaut on January 23d, (3) misrepresented his personal relationship with Mr. Filthaut, and (4) deliberately omitted these facts in his report to Chief Castor.. In addition, his January 25, 2013 Court testimony, denying phone contact with Mr. Filthaut after the arrest, did not square with what he told the Chief. ... Given the events that unfolded between January 23 and 24th, he had to be aware that this could result in further investigation, and undoubtedly escalate to being a significant problem for both himself and the Tampa Police Department. Between the January 23rd arrest and January 25th court appearance he had a window of opportunity to truthfully provide all of the facts to his superior officers and/or the Chief. He elected not to do so. His failure to communicate all the facts to Chief Castor on January 24th, or thereafter, proved to be intentionally deceitful, therefore, is deemed "untruthful".  

Arbitrator Popular found no basis for the Union's argument that progressive discipline should trump the policy of immediate termination set forth in the Department's policy. He noted the absence of any evidence that the City had ever imposed any lesser penalty for untruthfulness since the policy was issued, and concluded that immediate termination must be deemed to be the "unchallenged norm" for cases of untruthfulness.

Sunday, December 7, 2014

Medical marijuana, arbitration and the courts

In two recent decisions courts have vacated arbitrators' awards reinstating employees dismissed for use of marijuana. Both cases discuss the impact of medical marijuana legislation.

In Freightliner v. Teamsters Local 305 the U.S. District Court for Oregon granted the Company's request to vacate the award of Arbitrator Carlton Snow based primarily on the Arbitrator's reliance on the Oregon Medical Marijuana Act in contravention of what the Court believed to be the governing language of the cba.

Grievant had been employed as a material handler. After his involvement in a forklift accident he was required to submit to a drug test. On the day he took the drug test, grievant informed the Company that he had a prescription for medical marijuana that he had obtained a couple of months earlier. The results of the drug test showed that grievant was "under the influence" as defined in the Company's drug policy, which was expressly incorporated into the cba. The policy provided that being "under the influence" was cause for suspension or termination. As a result of the positive result, and his claimed failure to comply with the Company's notification requirement for prescription drugs, grievant's employment was terminated.

The termination was grieved and submitted to arbitration before Arbitrator Snow. Arbitrator Snow found that grievant was in fact under the influence as defined in the policy, but found further that there was no evidence that his work performance was impaired. According to the Court, the Arbitrator concluded that "in light of [Oregon's Medical Marijuana Act] an employer cannot 'discipline an employee (1) who ingests marijuana pursuant to a valid prescription, (2) does so on his or her own time, and (3) reports to work in an unimpaired state of being." Accordingly the Arbitrator upheld the grievance and ordered the grievant's reinstatement. Freightliner sought to vacate the award on the basis that the Arbitrator had exceeded his authority by relying on the Medical Marijuana Act, and that the award violated public policy.

In ruling on cross motions, the Court concluded that the Arbitrator "cited no credible internal authority [in the cba] justifying his reliance on the Marijuana Act and resultant disregard of the CBA's plain language about marijuana use." The court further concluded that the Arbitrator misread the law to provide affirmative workplace protection, noting that he:

seemed to suggest ... the Act permits parties to a CBA to regulate marijuana use only insofar as employers may forbid actually impaired employees from working. Snow, however, cited no statutory authority for the proposition the Act restricts how parties to a CBA may choose to treat marijuana use. Nor did Snow meaningfully link that proposition to the Act's workplace provision. Instead, he effectively applied his own notions of what the law should be, an approach tantamount to "ignoring" the law.

Finding that the award did not represent a "plausible" interpretation of the contract the Court granted Freightliner's motion to vacate. In light of this finding, the Court did not reach the public policy question.

In contrast, public policy was the primary basis for the decision of the Connecticut Superior Court in State of Connecticut v. Connecticut Employees Union Independent. Grievant had been arrested for smoking marijuana while at work in a state owned vehicle. His employment was terminated, and the termination was grieved and submitted to arbitration. The arbitrator found that the termination was not "within a proper range of progressive discipline" and modified the termination to a six month suspension and ordered the grievant's reinstatement. The State sought to set aside the award "on the grounds that the award violates the State's public policy on drug use while on state duty and operating a state owned vehicle."

The court first determined that there was a well defined public policy against the use of marijuana. It rejected plaintiff's contention that this public policy was diluted because of the state's implementation of its medical marijuana law. The court observed:

Although the defendants are accurate in stating the law, nothing in the records indicate that the grievant was prescribed marijuana. The arbitrator, in his award and opinion, makes no finding that the grievant was prescribed marijuana or that it was medically necessary for him to use marijuana to treat his depression and anxiety. As this court's review is limited to the facts as found by the arbitrator, the arbitrator's award cannot be confirmed on this ground.

On the merits the court concluded:

Similar to the findings of the arbitrator in AFSCME, Council 4, Local 387 , the arbitrator in the present case noted that the grievant's use of marijuana allegedly stemmed from "a number of stressors before and after the time he used marijuana." ... In addition, as noted by the court in AFSCME, Council 4, Local 387, AFL-CIO,, a progressive sanction of reinstatement suggested by the arbitrator in the present case would send the message that stress experienced in one's personal life somehow excuses the use of marijuana in the workplace. Thus, the arbitrator's award in the present case violates a clearly defined public policy.
Update: The Connecticut Supreme Court (here) reversed the decision of the Superior Court and upheld the decision of the arbitrator. The Court's decision is discussed at Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator's award

Sunday, November 23, 2014

Pay for Snow Days - Part 2

With record snow falls in the news, it's appropriate to revisit an issue first discussed in January. The earlier post, Pay for Snow day?- Same city, same storm, different results, discussed two awards from the Connecticut State Board of Mediation and Arbitration reaching different results on claims for pay for days employees were instructed to stay home because of record snowfall.

Since those two decisions, the SBMA has issued at least two other awards, involving the same town, the same storm, but different bargaining units.

In Town of Wallingford and IBEW, Local 457 a panel chaired by Arbitrator Douglas Cho sustained the Union's grievance. The award, covering two separate units represented by the Union, concluded:

Both agreements clearly set certain wages and hours and establish a normal work week as 40 hours worked Monday through Friday for Electric Division employees. Once the parties have agreed to certain hours and wages, the Town does not have the unilateral authority to decide not to pay its employees for work scheduled during the established days and hours. There is no specific or general provision allowing the Town to require employees to use vacation time in order to get paid for days the Town decides to close due to weather-related conditions.

While observing that there were not many examples of prior weather related closings which might establish a past practice, the majority noted there were no examples of prior weather related closings for which employees were not paid.

The second award, Town of Wallingford and AFSCME Co. 4, Local 1183, decided by a panel chaired by Arbitrator Nestor Diaz, reached a similar result. The majority concluded that while the circumstances were extraordinary, and the Town acted in good faith, "this does not mean that the Town has a right to deprive employees of a day's wage and instead urge them to take a vacation day to complete a week's wages."

Sustaining the grievance, the majority ordered the Town to make whole employees for lost wages or vacation time used.

Sunday, November 16, 2014

Reinstatement of police officer fired for dishonesty regarding personal conduct not violative of public policy

Grievant was employed as a police officer for the City of Sandusky, Ohio. He worked the night shift, which was supervised by a Sergeant who was also a personal friend. Grievant was approached by the Sergeant's fiancee who informed him that she and the Sergeant were "swingers" and that she wanted to have a sexual encounter with him. She advised the grievant that the Sergeant was aware of her request and had no objection to it. The Sergeant subsequently informed grievant that he knew of his fiancee's request and confirmed that he had no objection. Grievant turned down the offer.

Several months later the Sergeant's now wife began texting grievant. She and grievant began exchanging sexually explicit texts and photos. The Sergeant became aware of these texts and became angry that grievant had been communicating with his wife without his knowledge. He informed two higher level officers of his belief that grievant had been sleeping with his wife. The Department began an investigation and grievant described the solicitation he had received. However, on at least two occasions, he denied the existence of any explicit photos before ultimately acknowledging their existence.

The City terminated grievant's employment and the Union pursued the matter through arbitration. Arbitrator Robert Stein, while finding a basis for some discipline because of grievant's alleged insubordination, overturned the dismissal, finding it without just cause.

The City brought an action to vacate the award, contending, among other bases, that reinstatement of a police officer who had been dishonest during the investigation violated public policy. The Common Pleas court denied that request. The court initially noted that "the essence" of grievant's dishonesty involved off duty conduct and noted further that the Arbitrator had found no evidence that it had any direct negative impact on grievant's work performance.

Distinguishing other cases where the alleged dishonesty also violated criminal laws, the Court refused to vacate the award holding:

      Bearing in mind the standard of review which requires a reviewing court to make every reasonable indulgence to avoid disturbing an Arbitration Award, the Court cannot find it violates public policy to reinstate a police officer who was dishonest about something that was not job related, had no "direct negative impact on his work performance" and did not involve violation of a criminal statute.
      The Court finds that its review of an arbitration award must necessarily be very narrow. This Court cannot substitute its judgment for the judgment of the Arbitrator. The basis for vacating such an award are well established and very limited. Under the law, this Court cannot find that the Arbitrator exceeded his power or that public policy prohibits reinstatement, given the unique facts of this case. 

The Sandusky Register reports on the case here and here. The Court's decision can be found here .

(The City also terminated the employment of the Sergeant, for, among other reasons, "failure to display absolute honesty." Arbitrator Mary Jo Schiavone sustained the Sergeant's grievance and ordered his reinstatement. Arbitrator Schiavone's award can be found here.  The City did not seek to set aside that award.)

In another case, also addressing an issue of claimed dishonesty concerning off duty conduct, Arbitrator Norman Bennett rejected a claim that an Austin, TX officer had acted dishonestly in providing conflicting and contradicting statements to Internal Affairs during an investigation of his off duty actions while working security at a hotel. Arbitrator Bennett did so, however, for reasons of insufficiency of evidence without discussing whether there was a nexus to grievant's employment. The Austin Chronicle reports on the case and the decision is available here.

Sunday, November 9, 2014

Court-Arbitrator erred in awarding back pay to Union as penalty

A court has vacated a portion of an arbitration award ordering General Mills to pay almost three weeks of back pay, calculated at the grievant's rate, to the Union as a penalty for the Company's failure to timely provide information to the Union in a termination case.

The grievant was an employee who had been dismissed for allegedly falsely reporting her time of arrival on three occasions to cover up tardiness of from one to three minutes. The issue before the Arbitrator was whether there was just cause for that dismissal, and, if not, what the appropriate remedy would be. At the hearing the Union argued, among other points, that the Company had failed to have grievant sign Attendance Review/Reports, and had failed to timely provide certain documents to it.

Arbitrator Barbara Doering concluded that while the Company had done as the Union alleged, these actions didn't change the fact that the grievant had "knowingly and with intent to deceive" entered the wrong start time on the documents. However because she found that no one before had been fired for "falsifying" their time in, and because it was not clear that the certification language on the documents sufficiently warned the employee that failure to enter the actual start time would result in termination, the arbitrator reduced the termination to reinstatement with one week of back pay. The Arbitrator also ordered that General Mills pay to the Union three weeks of back pay:

which was the amount of time from 2/6/12 [the date of the initial meeting with the grievant] to 3/5/12 [grievant's last day of work] that the Company took to consider and investigate -for the fact that [grievant's supervisor] did not have grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of the relevant documents at the suspension meeting.

The Company did not challenge the Arbitrator's decision on the termination, but did seek to set the award of back pay to the Union.

While noting the strong presumption against overturning awards, the Court nevertheless vacated this portion of what it described as the Arbitrator's "strange" decision. It determined that this issue was not encompassed by the stipulated issue and that there was no contractual basis for the award of back pay to the Union. The Court concluded:

The arbitrator's decision to punish the company for not providing documents by awarding the Union money in an amount calculated by the amount of wages [grievant] would have earned from the date the company first met with her to discuss the issue until the date she was discharged (even though [she] had actually been paid for the days she worked during that time period) sounds to this Court like the arbitrator's own brand of industrial justice. Because the award to the Union was outside the scope of the issue the parties agreed to arbitrate and because the award does not draw its essence from the Master CBA, the Court hereby vacates the portion of the August 10, 2013 arbitration decision that awarded money to the Union

The Court's decision in General Mills, Inc. v. BCTGM Local 316G can be found here.

Sunday, November 2, 2014

Unsuccessful effort to set aside arbitrator's award not a basis for an award of attorneys' fees

SEIU Local 24/7 prevailed in an arbitration claiming that Pacific Gas and Electric had improperly denied security officers compensation for meal periods when they were subject to being on call or were required to respond to emergencies. PG&E sought, unsuccessfully, to set aside the arbitrator's award on the basis that the Arbitrator had ignored relevant contract language. The Union then sought an award of its attorneys' fees in the amount of $146,582.

The District Court, in a decision here, rejected the Union's request for an award of attorneys' fees. The court found no evidence that the Company's position was frivolous or undertaken in bad faith.

The Union appealed, and the Ninth Circuit has now affirmed. The Circuit Court noted:

Attorneys' fees are appropriate as a sanction when a party engages in bad faith or engages in conduct tantamount to bad faith. ... A refusal to obey an arbitral order may constitute bad faith conduct. ... However, a challenge to an arbitral order on the grounds that an arbitrator did not apply or misinterpreted the underlying contract does not necessarily constitute bad faith.

The Court's opinion is available here.

Sunday, October 26, 2014

Arbitrator overturns suspension of police officer disciplined for alleged use of excessive force

Arbitrator Michael Cavanaugh, chair of a unanimous three person panel, has sustained a grievance filed on behalf of a Seattle police officer challenging his eight day suspension for claimed use of excessive force.

The incident in question arose during an investigation of an individual believed to have been involved in a hit and run. Grievant was one of two officers who initially stopped the suspect. These two officers were then joined by a third. While inspecting the suspect's vehicle grievant observed what he believed to be a failure of the suspect to comply with the requests of the other officers. Grievant approached the suspect and using a "command voice" (a tactic he had been trained to use) ordered the suspect to "shut your mouth and just sit there." A struggle ensued as the officers attempted to handcuff the suspect, and in the course of the struggle the suspect spit on the officers. Grievant struck the suspect with his forearm and, after the suspect was on the ground, struck him with a closed fist.

A review of grievant's conduct was conducted, and a Sergeant, and acting Lieutenant and a Captain concluded that greivant's actions were reasonable and within policy. The Captain however referred the matter to the Office of Professional Accountability for a "complete and thorough review."

The OPA found grievant's use of force unjustified and unnecessary. It found that he had unnecessarily escalated the situation by injecting himself in an aggressive manner and that his use of force was "premature".

Consistent with the recommendations of the OPA, the Chief suspended grievant for a period of eight days. The Seattle Police Officers' Guild grieved and ultimately arbitrated this discipline.

Initially Arbitrator Cavanaugh addressed the nature of the dispute:

Allegations of excessive force by police officers require consideration of several significant - and often conflicting - public policy and political considerations, each of which is critically important in its own right, e.g. public safety, officer safety, the rights of individual members of the public, and the health of relationships between the SPD and the communities it serves - not to mention the City's compliance with a settlement agreement with the United Sates Department of Justice resulting from claims the SPD has too often used excessive force. 

The Arbitrator noted that just cause for the discipline could be established:

only if facts sufficient sufficient to support the discipline have been established by a preponderance of the evidence in the record, and even then, only if the process used by the City comports with accepted notions of due process and with concepts of equal treatment when considered in light of the discipline imposed on other officers for similar established offenses.

Applying these standards, Arbitrator Cavanaugh concluded that the City had failed to meet its burden. He determined that what the OPA had deemed to be improper escalation was a legitimate, if unsuccessful, attempt to obtain the suspects compliance without the use of force. He also noted that while what the Chief had described as tactical errors had been made, these errors were equally the responsibility of the other officers on the scene and there was no evidence that they had been disciplined. Finally, he concluded that the evidence failed to establish that the blows delivered by grievant were excessive. With regard to the first, he found an absence of evidence that any reasonably available lesser level of force would have been effective in ending the suspect's assault (i.e. the spitting), and with regard to the second, he found that the City had failed to effectively counter grievant's testimony that the suspect was continuing to resist while he was on the ground.

Finding a lack of just cause for the discipline, the Arbitrator ordered the City to remove the suspension from grievant's record and make him whole for lost wages.

The Seattle Times reports on the award Panel overturns suspension of SPD officer in use-of-force case and links to the award of Arbitrator Cavanaugh here.

Sunday, October 19, 2014

Alcohol fueled misconduct found just cause for termination despite rehab

Arbitrator Joseph Duffy has upheld the termination of an Able Bodied Seaman in a dispute between the State of Washington and the Inland Boatmen's Union of the Pacific.

Grievant was employed by the Washington State Department of Transportation, Ferries Division. On April 5, 2013, while he was off duty, grievant drove his personal vehicle on board a ferry operated by the employer. While on board, grievant engaged in conversation with two other employees. According to these employees grievant was intoxicated and made offensive and racially charged comments to both, as well as comments about a passenger. The grievant was also alleged to have engaged in inappropriate physical contact with a female coworker. The coworker testified that grievant thrust his hands between her vest and her shirt, rubbed against her from behind, and placed his face against the back of her neck. During the employer's investigation of this incident grievant claimed he had no recollection of the events in issue, saying he was in an alcoholic blackout at the time. The employer terminated grievant's employment, and the dispute was ultimately submitted to arbitration. At the hearing the Union argued that while grievant's conduct warranted discipline, termination was too severe, and the discipline should be mitigated because of grievant's length of service and his successful participation in an alcohol treatment program.

Initially, Arbitrator Duffy noted that while grievant had been off duty at the time of the incidents, there was a clear connection between the events and grievant's employment, noting that they took place on board a ferry operated by the employer and involved coworkers and, potentially, a passenger. He then considered, and rejected, the Union's mitigation and disparate treatment arguments, observing:
     As witnesses at this hearing testified, many people successfully recover from alcoholism, remain sober and lead productive lives thereafter. ... The process of recovery often has a transformative effect on the individual that extends beyond simply stopping drinking. The Grievant described the positive, transformative effect that recovery has had in his life. ... Clearly, the Grievant's conduct in obtaining treatment and continuing in follow up programs is commendable.
     Had this been a case of intoxication in the workplace without the other elements, the outcome would very likely be different. Intoxication, however, does not provide an excuse for serious misconduct of the type engaged in by the Grievant. The mitigating factors of length of service, the lack of prior discipline for similar conduct and the Grievant's commitment to alcoholism treatment are outweighed by the Employer's interest in protecting the integrity and credibility of its equal employment policies and rules. 

As a result, he rejected the Union's grievance.

Arbitrator Duffy's Award can be found here.

Sunday, October 12, 2014

State must adhere to cba despite lack of appropriated funds

The Illinois Appellate Court has upheld an award of Arbitrator Edwin Benn finding the state's refusal to implement a scheduled wage increase to be contrary to the cba. State v. AFSCME Council 31

The cba, as modified by subsequent Cost Sharing Agreements (CSAs), called for the implementation of a 2% wage increase on July 1, 2011. However, citing adverse economic conditions and the absence of sufficient appropriated funds from the General Assembly, the State refused to implement the increase. While the Governor's proposed budget fully funded all collective bargaining agreements, the budget passed by the  General Assembly did not include funds for certain contractual increases.

The Union grieved the refusal to implement the increase, and Arbitrator Benn sustained the grievance, ordering the State to immediately pay the increase (and future increases) and to make whole affected employees. In doing so the Arbitrator rejected the State's argument that he should interpret and apply provisions of the Illinois Public Labor Relations Act and the State Constitution which, it contended, effectively prohibited the State from implementing the increase in the absence of appropriated funds. Noting that his authority was limited to interpreting the parties' contract, the Arbitrator declined to engage in an analysis of the statutory or constitutional limitations. Those issues, he concluded, were more appropriately decided by the courts.

The State sought to set aside the award as contrary to public policy, but the trial court substantially declined. The Appellate Court has now affirmed that decision.

The Court noted that the State's Constitution proscribed laws impairing the obligations of contracts, and that the IPLRA expressly authorized the State to enter into multi-year agreements. The Court concluded that the State's position would render multi-year agreement unenforceable. The Court summarized its holding:

Like the State of Iowa in Iowa Council 61, the State of Illinois here argues that if the General Assembly chooses to appropriate all its funds to specific purposes other than the payments of amounts the State's agents agreed to pay state employees, then the State owes its employees nothing. Such an interpretation of the CBA and the CSAs, as documents that commit the State to nothing, cannot stand. The State's interpretation of the General Assembly's appropriation power would allow the General Assembly in every appropriation bill to impair the State's obligations under its contracts. We adopt the reasoning of the Iowa Supreme Court in Iowa Council 61. The State, through its authorized agents, may commit the State to pay parties who enter into contracts with the State, even before the General Assembly has appropriated funds for the contract. Iowa Council 61, 484 N.W.2d at 394; see also Association of Surrogates & Supreme Court Reporters v. State of New York, 940 F.2d 766, 771 (2d Cir. 1991). If the State seeks to make the contract contingent on appropriation, it must make that contingency explicit in the contract. See Carlstrom v. State, 694 P.2d 1, 4 (Wash. 1985).

Update: The Illinois Supreme court has overturned the lower court and vacated Arbitrator Benn's Award as contrary to public policy. Public policy challenges to arbitration awards- three recent cases

Sunday, October 5, 2014

Terminating a past practice

Arbitrator Paul Glendon has found that the City of Toledo breached its agreement with the Toledo Police Patrolman's Association when it unilaterally prohibited officers from engaging in outside employment at any establishment primarily in the business of dispensing alcohol.

The parties' agreement prohibits any employee of the City from accepting employment that is adverse to or in conflict with the employee's employment. Notwithstanding this language, and for in excess of thirty years, officers had been allowed to work outside of (e.g. in parking lots, streets, etc).establishments primarily engaged in dispensing alcohol. The parties referred to this as "projecting." The City, without objection from the Union, did prohibit projecting at  businesses that were the subject of an investigation or prosecution for criminal or liquor license violations.  In March of 2014, however, the Chief issued a Notice prohibiting all such employment. The City maintained the Chief was simply exercising a management right in deciding that any outside employment at such an establishment was adverse to and in conflict with police employment.

In addressing the Union's grievance, Arbitrator Glendon concluded that the ability of officers to work outside of establishments primarily in the business of dispensing alcohol was an established past practice that the City could not unilaterally alter during the contract term. He agreed with the Union that the thirty year practice "met the usual criteria of duration, consistency and mutuality to be a binding past practice clarifying the meaning of the 'adverse to or in conflict with' standard."

 Arbitrator Glendon cautioned that his determination did not mean that the practice could never be terminated, but found that the City had failed to establish a basis for doing so. He noted:

The City could give notice at the end of the contract term that it no longer would recognize it under a successor agreement, thereby making it a subject for bargaining. To justify unilateral termination of the practice during the contract term, however, the City had the burden of proving that circumstances under which it was established and perpetuated no longer existed and that current circumstances are such that it is reasonable to believe any and all  projecting would be adverse to or in conflict with police employment. Absent clear, convincing evidence to that effect, the City's unilateral mid-term prohibition of all projecting would be an arbitrary, unjustified exercise of its "administrative responsibility" recognized in [the cba].

Accordingly he declared the Chief's March notice to be void ab initio and remanded the dispute to the parties for negotiation of the monetary remedy.

The Toledo Blade reports on the decision here, and links to Arbitrator Glendon's Award here.

Sunday, September 28, 2014

Arbitrators improperly adding obligations to parties' contracts

Two recent decisions overturn arbitrators' awards, finding that the arbitrators acted in excess of their authority by adding obligations to the cba or by ignoring its provisions.

Definition of Gross Misconduct

In National Children's Center v. SEIU Local 500 the District Court for DC overturned the award of the Arbitrator, concluding that he had improperly ignored the terms of the cba.  The cba provided that just cause was defined as "NCC's determination that an employee does not meet this high standard [of performance, quality and care], so long as NCC does not exercise its discretion in a manner that is arbitrary, capricious or without foundation ...." NCC had also issued rules, as provided for in the cba, which defined gross misconduct as including removing, without permission, NCC property or the property of another employee.

Grievant had, at the request of an employee who had been dismissed, removed from the facility certain equipment the dismissed employee claimed belonged to her. After grievant informed NCC of what she had done, NCC terminated her employment for claimed violation of the rule.

The arbitrator concluded that grievant's conduct had violated the rule, but that her conduct did not constitute "gross misconduct." The arbitrator determined that NCC had therefore acted arbitrarily and capriciously when it terminated grievant's employment. He ordered grievant's termination reduced to a 30 day suspension.

NCC sought to set aside the award, and the District Court granted the motion. It concluded:

In this case, the arbitrator denied NCC the benefit of the bargained-for terms of its collective bargaining agreement, specifically, NCC's right to distinguish and define "gross misconduct." The arbitrator acknowledged that Section 703.6 fulfilled legitimate management purposes and that [grievant] had no reasonable excuse for her ignorance of the rule. ... Nonetheless, the arbitrator contravened the express terms of the collective bargaining agreement by finding that [grievant's] conduct "d[id] not rise to the level of gross misconduct." .... The collective bargaining agreement reserved to NCC the discretion to craft workplace rules and define "gross misconduct." See 2011 Collective Bargaining Agreement at 25. The arbitrator therefore ruled in contravention of the collective bargaining agreement by "substitut[ing] his [own] judgment or discretion for NCC's judgment or discretion." ...

 The court found that rather than interpreting the cba, the Arbitrator had substituted his judgment for "the clear management rights provided in the collective bargaining agreement."

The court therefore remanded the dispute to the arbitrator for a determination of whether NCC acted in an arbitrary and capricious manner when it fired grievant for what the rule defined as gross misconduct.

Implied terms of the cba

In County of Lebanon v. AFSCME District Council 89, Local Union 2832, the Commonwealth Court of Pennsylvania affirmed a lower court's refusal to confirm an award of Arbitrator Jane Rigler that had ordered the County to rescind the contracting out of a nursing homes' dietary department.

The contract between the County and the Union provides that "[i]n the event the [County] sells, leases, transfers or assigns any of its facilities" it is obligated to attempt to place the affected employees with the new employer and to provide thirty day notice to the Union. The Arbitrator concluded that this provision was applicable to the contracting of the dietary department, but that while the contract imposed no explicit prohibition on contracting out the work, an implied obligation of good faith and fair dealing barred the County from doing so without first  "fully and fairly dealing with the Union." The Arbitrator ordered the County to resume operation of the department and offer reemployment to all affected employees.

The County sought to set aside the award, and the Court of Common Pleas agreed. The Union appealed, and the Commonwealth Court has now affirmed.

In rejecting the Arbitrator's finding of an "implied obligation" the Court observed:

Notably, the Arbitrator ... found that the CBA "impose[d] no explicit constraint on the County's ability to contract out Cedar Haven, dietary services, work."... The Arbitrator then concluded that because the Article was silent as to the circumstances, the Article was also silent as to the County's pre-transfer obligations to the Union, and that such pre-transfer obligations should include participation by the Union in the decision-making process. Such a conclusion, however, is contrary to the plain language of Article XXXIII, which expressly lays out the County's dual pre-transfer obligations to the Union: (1) attempted placement of employees and (2) at least thirty days' notice. The arbitrator may not have liked the terms, or thought they offered the Union insufficient protection, but she was "confined to interpretation and application" of the CBA and was not free to "dispense [her] own brand of industrial justice." ... The Arbitrator, in other words, "was obliged to apply the agreement as written, without imposing additional terms that modify and limit what the parties expressed."

Concluding that the Arbitrator's decision attempted to impose duties that were not provided for in the cba, the Court affirmed the lower court's refusal to enforce the award. 

Sunday, September 21, 2014

Employer not obligated to extend grievance settlement to different unit

A Steelworkers Local represents a unit of production and maintenance employees at 3M's Cottage Grove, Minnesota facility. IUOE Local 70 represents a combined unit consisting of certain employees at Cottage Grove as well as employees at another 3M facility in St. Paul.  Until April of 2010 employees represented by both unions at Cottage Grove were covered by a common Attendance Control Program. After that date, 3M introduced a separate program for Local 70, though the terms were essentially the same.

In January of 2012, 3M and Local 70 settled a grievance concerning the program. Pursuant to the agreement, after a transition period employees represented by Local 70 would not be charged with an occurrence under the Attendance Control Program for sick leave absences.

In May of 2013, an employee represented by the Steelworkers was suspended for three days under the Attendance Control Program for a sick leave absence. The Steelworkers filed a grievance, asserting that it was "unfair and discriminatory" not to give grievant the same relief the employees represented by Local 70 had received. The Steelworkers claimed the circumstances were identical to those present in the grievance settled by 3M and Local 70. The parties were unable to resolve their dispute in the grievance procedure and the Union submitted the dispute to Arbitrator Thomas Gallagher for resolution.

Arbitrator Gallagher denied the grievance. He noted initially that at the time it negotiated it most recent cba the Steelworkers did not attempt to negotiate modification of the Attendance Control Plan to achieve the result it sought, even though it was aware of the IUOE settlement at that time. Noting that Steelworkers were now attempting to modify their agreement by means of a favorable award in the arbitration, the Arbitrator concluded "Contract amendment is not within the authority of a grievance arbitrator; it should occur only in the give and take of bargaining." The arbitrator also observed that 3M had presented evidence that the nature of the workforce represented by the two unions was different, and that the Company could tolerate greater absence among the IUOE employees. He concluded:

          That difference in the need for attendance is at least sufficient to show that the issue should not be resolved by an arbitrator's determination that relevant circumstances affecting both employee groups are identical.
          Rather, the interests of the parties should be resolved in bargaining. The bargaining process is better suited than arbitration to resolution of this kind of issue -- 1) because arguments of the Union in favor of uniform treatment of both employee groups may be able to lessen the Employer's concerns about maintaining production efficiency, 2) because arguments of the Employer may persuade the Union that good attendance will enhance production sufficiently to allow economic benefits, or 3) because the parties will find some other resolution in the give and take of bargaining. 

Arbitrator Gallagher's Award can be found here.

Sunday, September 14, 2014

Weingarten and criminal investigations of employees

This is a subject addressed in two recent cases.

In Prince George's County v. Prince George's County Police Civilian Employees Association the Maryland Court of Special Appeals considered whether it was a violation of public policy for an arbitrator to conclude that the the County was obligated to inform an employee of his right to union representation "during an investigatory interview, when his  employer was conducting a criminal investigation."

Grievant, a civilian employee of the police department,was initially requested to meet with the Department's Criminal Investigation Division for an interview in connection with the investigation of a missing weapon. As that investigation progressed, Grievant was also asked about allegations he had impersonated a police officer, had engaged in the unauthorized use of the police radio while operating one of the Department's undercover vehicles, and improperly activated emergency equipment. A referral was made to the Department's Internal Affairs Division which ultimately issued a recommendation that greivant's employment be terminated. The recommendation was followed, and the Union pursued a grievance to arbitration over the discipline.

The arbitrator upheld the grievance on several grounds, one of which was that the Department had denied grievant his Weingarten rights during the interview.The Department sought to set aside the award, arguing that it violated public policy when it determined that grievant was entitled to a union representative during  a criminal investigation. The lower court confirmed the award, but the Court of Appeals reversed. Adopting reasoning similar to that adopted by courts in Illinois and New York, the Court concluded: 

As in Illinois State Police and City of New York, the arbitrator's award here and the circuit court's decision to uphold the arbitrator's award constrains the ability of the County's police department to conduct criminal investigations and interrogations of their union members. 
The serious crime of theft of a police officer's service weapon and impersonating a police officer cannot give way to an employee's Weingarten rights. To do so, as held by our sister jurisdictions, would interfere with the police department's ability to investigate crimes and violate the public policy of effective law enforcement. The public safety exception applies to this case because [Grievant] was being interrogated about several crimes by his police department employer rather than merely an employment issue and we thus reverse the decision of the circuit court affirming the arbitrator's decision.

Because it could not determine whether the Arbitrator would have overturned the termination on other grounds alone, it  vacated the award and remanded the dispute to a new arbitrator.

In contrast, the New Jersey Appellate Division, in  New Jersey Transit Bus Operations, Inc. v. ATU New Jersey State Council, affirmed a decision of the Public Employment Relations Commission (PERC) that denied a request by N.J. Transit to restrain arbitration of a claim that it had denied an employee his Weingarten rights during what the employer claimed was a criminal investigation by its internal police department.

Grievant had been dismissed for allegedly taking money from a fare box of a NJ Transit bus. He was interviewed at the worksite by officers of the NJ Transit Police Department. The Union claimed he was denied union representation during that interview. The employer filed a scope of negotiations petition seeking a determination that the Union could not rely on the alleged denial of union representation to exclude admissions made during the interview.

PERC rejected this request, and the Appellate Division affirmed. It quoted with approval the following excerpt from PERC's decision:

We reject NJT's argument that Weingarten rights never apply to interviews conducted by NJTPD because to allow such representation would frustrate the effectiveness of criminal interviews. While NJT asserts that NJTPD is akin to a municipal or State police force, NJTPD's jurisdiction is limited to "police and security responsibilities over all locations and services owned, operated, or managed by the [NJT] corporation and its subsidiaries." N.J.S.A. 27:25-15.1(a). The nature of the investigatory interview may have been criminal, but it resulted in an administrative termination of the employee's job. An investigatory interview conducted by the police arm of a public employer, as opposed to the public employer itself, is not, standing alone, a ground to render Weingarten protections inapplicable. In re Carroll, 339 N.J. Super. 429 (App. Div. 2001) (even though sheriff's officer was granted use immunity during an internal criminal investigation interview, he should have been allowed to consult with attorney and union representative); see also Dep't of Human Services, P.E.R.C. No. 89-16, 14 NJPER 563 (¶19236 1998) (finding a violation of the New Jersey Employer-Employee Relations Act when an employee interviewed by Human Services police was denied union representation where the employee had a reasonable basis to believe the information gathered at the interview was available for purposes of administrative discipline); see also U.S. Postal Service, 241 N.L.R.B. 141, 100 LRRM 1520 (1979) (finding that an employee interviewed by Postal Service inspectors and ultimately disciplined based on evidence obtained as a result of the criminal investigation was entitled to union representation). 

Sunday, September 7, 2014

Correctional Officer Arbitration Awards

Several awards involving correctional officers have been in the news recently.

Correctional Officers Scheduling 

In State of Alaska and Alaska Corrections Officers Association, Arbitrator Kathy Fragnoli sustained a contract interpretation grievance involving the scheduling of vacations. She concluded that the Sheriff had violated the parties' cba by unilaterally imposing a leave restriction of 84 hour at a time. Most Correctional Officers worked schedules of seven twelve hour days followed by seven days off. The contract provided that leave selection should be based on seniority. Previously the CO's had selected vacations in one week increments using a round robin system. The Sheriff, claiming that this resulted in inequities and deprived junior employees the ability to schedule vacation in desirable times, imposed a limitation of one week of leave per month (which, when combined with days off resulted in three weeks off.) The State defended this restriction, claiming it was privileged by the management rights provision of the cba. Arbitrator Fragnoli rejected this claim, and rejected the State's argument that the restriction was necessary to equalize vacation opportunities, noting:

The other justification offered by the State—the equalization of vacation opportunities among
COs of varying seniority—is not a legitimate reason to restrict leave because it also violates the
contract. Article 20.1.E specifically states that leave selection is based on seniority. It is thus
clearly the intent of the parties ... that vacation leave be distributed based on seniority. The evidence indicated that the parties have utilized methods of leave selection (namely, the round robin) that achieve some level of equalization; any other unilateral attempts by the Department to undercut seniority as the primary basis for allotting scheduled leave violate Article 20.1.E.

The Arbitrator also rejected the State's reliance on the zipper clause of the cba, observing

Zipper clauses are construed very narrowly and clearly do not remove the need to bargain when an employer implements a new policy that directly contravenes bargained-for conditions of employment.

The Alaska Correctional Officers Association  links to the award of Arbitrator Fragnoli here.

The Association also notes here that the Alaska Superior Court has recently confirmed an earlier Award of Arbitrator Janet Gaunt (discussed here) reversing a change in scheduling of certain officers from a seven day to a five day schedule.  

Disparate Treatment 

In Iowa Department of Corrections and AFSCME Council 61, Arbitrator James Cox reduced the termination of a Correctional Officer to a forty day suspension. He did so primarily based on his finding of disparate treatment. Grievant had failed, on a number of occasions, to conduct inmate counts. Similar failures were found involving other night shift employees. In overturning the termination Arbitrator Cox observed that grievant's behavior was not as severe as that of another employee whose termination he had previously upheld. He also noted that the other employees who had engaged in similar conduct (although to a slightly lesser degree) had received only suspensions, concluding:

[Grievant] was one of 12 Officers disciplined for different degrees of similar misconduct in July 2013. It was unfair and unjustified to terminate [Grievant] while at the same time only suspending others involved in the same widespread abuse of the Count requirements in July 2013, whether for ten days or five days, for substantially similar misconduct involving between 2 and 4 occurrences rather than the 10 instances in which [Grievant] engaged. There was no identification of any factor other than the six occurrence differential to warrant his discharge. [Grievant's] discharge for similar misconduct constitutes disparate treatment especially considering the widespread failures to make and then represent having made Counts throughout the month and the number of Officers who were participants.

Accordingly, Arbitrator Cox reduced the termination to a forty days suspension.

Arbitrator Cox's Award can be found here.

Associating with a known criminal-his cousin

The Butler County, OH Sheriff has announced he will continue to appeal the decision of an arbitrator rejecting the termination of a corrections officer. The officer was dismissed after he allowed his cousin, who had recently been discharged from prison, to move in with him. The Sheriff maintained that this violated a contractual prohibition on associating with known criminals. According to a report in the Journal-News, Arbitrator Terry Bethel rejected the termination, noting that the cousin was not a notorious criminal and that grievant's actions would not substantially impair the reputation of the Sheriff's office. Sheriff ordered to rehire fired corrections officer. The arbitrator's award was upheld by the Butler County Common Pleas Court, and the Sheriff has indicated his intent to appeal that decision. Sheriff to appeal ruling reinstating corrections officer

Sunday, August 17, 2014

Arbitrator upholds grievance of Miami police officer terminated for fatal shooting

Arbitrator Martin Soll has found that the termination of a Miami police officer was without just cause.

Grievant was dismissed following his involvement in a fatal shooting. He was part of a joint task force investigating suspected gang activity in Miami. As a result of a request from another officer to stop a car leaving a bar believed to be frequented by gang members, grievant and several other task force members stopped the vehicle. Grievant approached the car and directed the driver to "show your hands." The driver did not  comply, but according to grievant, appeared to reach for what grievant believed to be a weapon. Grievant yelled at the driver "don't do it"  and when the driver continued, grievant fired three shots, killing the driver and wounding the passenger. In fact, the driver had no weapon but what grievant perceived to be a weapon was actually a cell phone.

The shooting was investigated by the Department's Firearms Review Board, and the Board concluded that the firing was unjustified and in violation of the Department's Use of Force Policy. The Chief concurred and terminated the employment of the grievant. The Chief's reasons were summarized in four specific charges, including (i) an allegation that the evidence concerning the shooting was inconsistent with grievant's statement, (ii) a conclusion that neither grievant nor any other person was in imminent danger of death or serious injury, (iii) an allegation that the evidence was inconsistent with grievant's statement that he had seen a black object he believed to be a gun, and (iv) a charge that grievant should not have approached the vehicle but should have instead retreated.

The Union (FOP Lodge No. 20) was unable to resolve the dismissal in the grievance procedure, and submitted the dispute to arbitration before Arbitrator Martin Soll. Based primarily on his factual findings, Arbitrator Soll concluded that the City had failed to meet its burden of proof on the four charges. He concluded that in fact the evidence was consistent with grievant's statement concerning both the shooting and grievant's perception of a weapon. Regarding the second and third specifications, Arbitrator Soll found that the Firearms Review Board had concluded, and the evidence at the hearing supported a finding, that  grievant "reasonably believed he saw what appeared to be a weapon." The Arbitrator found further that there was no basis for the charge that grievant should have retreated,and there was no support for the allegation that grievant had violated the Deadly Force Policy. The Arbitrator found nothing in the Department's Policy requiring  retreat, but instead observed that it specifically provided "it must be remembered that by law, an officer need not retreat in his/her efforts to lawfully control a subject ...".

Arbitrator Soll also noted that, while not determinative, the Office of the Miami-Dade County State Attorney had investigated the shooting and deemed it justified.

Finding no support for the City's allegations the Arbitrator ordered the City to reinstate grievant with back pay

Arbitrator Soll's award can be found here.

Sunday, August 10, 2014

Introduction of "new" technology doesn't require increase in pay

The City of New Britain, CT employs a number of mechanics responsible for maintenance of its fleet of vehicles. As part of their job duties the mechanic are required to document repairs performed, parts needed and hours spent performing tasks and are responsible for ordering necessary parts. Records were kept on paper work orders.

In May of 2012 the City introduced a new software program and required the mechanics to enter into the computer the information previously entered onto the paper work orders. The mechanics attended a two day training program on the new system.

The Union representing the mechanics (AFSCME Council 4) processed a grievance on their behalf, claiming that the new requirements were more difficult and time consuming. It asserted that the job description for the mechanics did not require them to be proficient in the use of computers or computer software.

The dispute was unresolved in the grievance procedure and was submitted to arbitration before the Connecticut State Board of Mediation and Arbitration.  The Board rejected the grievance, concluding:

 The job description lists among the position's job duties the recording and requisitioning of tools, materials and supplies for the assigned tasks as necessary. ... Clearly, the information required is the same; it is only the method of recording that information which has changed. The computer is nothing more than a different tool to input the information. And while it may take more time to input that information (especially if one is unaccustomed to using a computer), the extra time does not make these duties outside the scope of the mechanics job description. Put another way, taking additional time to perform a task that is clearly within the scope of the job description does not entitle the mechanic to a higher rate of pay.

The Board also rejected the Union's claim that the computer work was actually the work of the manager. While the manager was responsible for overseeing software management programs, what the mechanics performed was, the Board concluded, essentially data entry.

The Board of Mediation and Arbitration's decision can be found here.

Sunday, August 3, 2014

Conduct unbecoming, use of force, drug tests and restraining orders- several police related awards

Conduct unbecoming

Arbitrator Harry G. Mason overturned the termination of a police Sergeant employed by the City of Lakeland, FL. The grievant was dismissed after acknowledging that he had had sex with a civilian employee of the City in his car in a park. Grievant was off duty at the time and his partner was on her lunch break. This issue was uncovered during an investigation of allegations of sexual activity and the exchange of sexually explicit pictures and texts between the civilian employee and several members of the police department. Arbitrator Mason concluded that the City had proved "by significant evidence" that grievant violated the Neglect of Duty and Conduct Unbecoming policies. He agreed with the City that grievant's conduct, and the ensuing publicity, brought the Department into disrepute.  However he found, in the circumstances of this case,and in view of the differing penalties imposed on other officers, that termination was too severe. He observed:

  If the [Grievant's] matter existed in isolation where there had not been so many other sexual activities by other officers that [the Chief] dealt with in the matter that she did, his termination likely would have been for just cause
The CBA requires consistent and appropriate discipline. I find that [grievant] was not disciplined consistent with the discipline imposed on others involved in this sex scandal. 

The Arbitrator ordered grievant's reinstatement as a police officer (not a Sergeant) and awarded back pay at the officer rate. reports on the decision here, and links to Arbitrator Mason's award here.

Use of Force

Arbitrator Janet Gaunt denied grievances filed on behalf of three Portland police officers who were disciplined as a result of their conduct in connection with the incident leading to the fatal shooting of Aaron Campbell. A grievance over the termination of the fourth officer, who fired the fatal shot, was previously sustained by Arbitrator Jane Wilkinson (discussed here).

 Arbitrator Gaunt upheld a two week suspension for an officer who fired a beanbag at Campbell. The Arbitrator found that the City established that the officer acted unreasonably and prematurely. She concluded that "[grievant's] impatience resulted not from a lack of time or an immediate threat, but from annoyance that Mr. Campbell was doing what he wanted to do rather than exactly what [Grievant] was telling him to do."   Arbitrator Gaunt also concluded that the Sergeant in charge of the scene failed to ensure sufficient communication and coordination, and that a second Sergeant also failed to communicate critical information and coordinate his activities.

The Oregonian reports on the case here, and links to Arbitrator Gaunt's award here.

Drug Test

Arbitrator James Reynolds sustained a grievance filed on behalf of a terminated Miami Beach police officer who had been dismissed after failing a drug test. Grievant had been selected for a random drug test, and the test proved positive for the presence of metabolites of cocaine. Grievant denied knowingly ingesting cocaine, but testing of the split sample confirmed the initial results. Subsequently grievant became suspicious of a topical "cream" which a friend had given him to enhance his sexual performance as a possible source. A sample of the cream was tested and was found to contain cocaine. The City found this explanation for grievant's  positive test results unbelievable and terminated his employment.

Arbitrator Reynolds overturned the termination on two separate grounds. Initially he concluded that the City failed to follow its normal investigative process. Contrary to the normal process, in this case the Chief had dismissed grievant prior to a review by a Disposition Review Panel of Command Officers. The Arbitrator noted:

  Clearly the review panel would likely be biased in its review of the [Internal Affairs] findings by knowing that the Grievant had already been terminated by the Chief of Police. The likelihood of that bias, whether intentional or not, is sufficient to find that the fairness standard of just cause was not met in this case.

In addition, and on the merits, the Arbitrator concluded that the City had failed to effectively challenge  the grievant's explanation for the positive test result.  He concluded that the record compelled a finding that Grievant had cocaine metabolites  in his system due to using a cream which he did not know contained cocaine. Arbitrator Reynolds ordered grievant's reinstatement with back pay but provided that grievant would be subject to a minimum of 6 unannounced tests over a 12 month period for up to five years as provided in the City's Drug and Alcohol Policy.

Arbitrator Reynolds' Award can be found here.

Restraining Order

Arbitrator Tim Hatfield denied a grievance filed on behalf of a Woburn, Mass. police officer who was subject to a restraining order arising out of claimed domestic violence. As part of that order, Grievant was prohibited from possessing or carrying a firearm. The order was renewed and not scheduled to expire until February 17, 2015. Grievant was also arraigned on charges of domestic assault and battery, and in May of 2012 entered an Admission to Sufficient Facts on the charges. His employment was terminated on July 11, 2012 based on the admitted to "sufficient facts" and the restraining order prohibition on possession of a firearm.

The Arbitrator concluded that:

The City is under no obligation to  leave a patrol officer's position open for [Grievant] in the hope that he might sometime in the future be eligible to possess and carry a firearm, a fundamental requirement for all Woburn Police Officers. Based solely on this fact alone, the City had just cause to terminate [Grievant]. (footnote omitted) 

Additionally, based on the Admission of Sufficient Facts, and substantially discrediting Grievant's denials and explanations of the incidents in question, the Arbitrator found these also supported a finding of just cause. He noted:

 I agree with the City's assertion that police officers must be held to a higher standard of conduct given their prominent position and responsibilities in  the community.

Arbitrator Hatfield's Award can be found here.

Sunday, July 27, 2014

A weapon in the parking lot, the statute of limitations and public policy - court rejects challenge to arbitrator's award

In its decision in Alabama Gas Corp. v Gas Fitters Local Union No. 548, the District Court for the Northern District of Alabama denies Alabama Gas' request to set aside an award of Arbitrator Jack Clarke and instead grants the Union's request to confirm the award.

The dispute arose out of the dismissal of grievant, a senior mechanic at Alagasco. Co-workers of grievant had reported comments attributed to grievant they found troubling and which the Company believed indicated a potential for workplace violence. During the investigation of the incident grievant admitted making the comments alleged, and also admitted the possession of a firearm in his personal vehicle in the Company's parking lot.

After a hearing, Arbitrator Clarke concluded that the statements attributed to grievant were, taken in context, not threatening and were not "noteworthy" with respect to a propensity for violence. He also noted, however, that the Company had conceded that the "main factor" in the termination was grievant's possession of a loaded handgun in his vehicle in the Company parking lot. The Company maintained that this was contrary to its employment rules.

. While finding that possession of the weapon was a serious act of misconduct, the arbitrator concluded that the penalty of termination was "so excessive a punishment as to exceed the bounds of reasonableness." Accordingly, he reduced the penalty to a thirty day suspension and ordered the Company to reinstate grievant with back pay for the remaining period.

Alagasco filed suit to set aside the award as contrary to public policy. The Union filed a counterclaim seeking to confirm the award.

Alagasco initially sought the dismissal of the Union's counterclaim on the basis that it had been filed more than three months after the award, allegedly outside the applicable statute of limitations. Rejecting this claim, the Court observed:

Alagasco claims that Local 548's counterclaim is filed outside the three-month limitations period set forth in United Steel v. Wise Alloys, 642 F.3d 1344 (11th Cir. 2011). That three-month limitations period, however, governs actions to vacate arbitration awards and thus is inapplicable to Local 548's counterclaim. The statute of limitations for actions to enforce arbitration awards is six months. Samples v. Ryder Truck Lines, 755 F.2d 881, 888 (11th Cir. 1985). Assuming the limitations period begins on the date of the arbitration award, the counterclaim is not barred, as Local 548 filed its answer and counterclaim on October 2, 2013, less than six months from the date of the arbitration award on May 16, 2013.

The Court also rejected the Company efforts to set aside the award on public policy grounds. Observing that the Company's argument was premised on OSHA's general duty clause, the Court determined that this provision "does not constitute an explicit, well defined public policy justifying the vacatur of the arbitration award in the case at bar."  The Court also found inapplicable Alagasco's reliance on the 11th Circuit's decision in Delta Air Lines v. Air Line Pilots Ass'n (vacating an arbitration award reinstating a pilot who flew a passenger jet while intoxicated). It found that decision distinguishable at least three significant ways. First, [Grievant's] misconduct was not integral to the performance of his employment duties. Second, [Grievant] may have violated Alagasco's Policy No. 401, but he did violate federal  agency regulations and the criminal law that formed the basis of a well-defined and dominant public policy. Third, [Grievant's] reinstatement was not a clear violation of any public policy.

However, the Court denied the Union's request for attorney's fees finding the Company's reliance on the Delta Air lines decision was not "wholly unreasonable."

Sunday, July 20, 2014

More from the Fifth Circuit on "implied findings of just cause"

The Fifth Circuit has, on several occasions, refused to confirm an arbitrator's award where it determined that the Arbitrator's factual findings constituted an "implied finding" of just cause. This line of cases is discussed here. Essentially, the Court has found that where the cba provides that a specific act of misconduct is grounds for termination, an arbitrator's finding that the grievant engaged in the conduct alleged impliedly finds just cause for termination and the arbitrator is not free to reduce the penalty.

The Court has once again addressed this issue, but in this case concludes that the cba in issue does not compel such a result.

In Steelworkers v. Delek Refining, LTD. the Court reversed the decision of a District Court and affirmed an award of Arbitrator Daniel Jennings reinstating a grievant who had been dismissed for "unacceptable performance and insubordination." Arbitrator Jennings concluded that Delik lacked just cause for the termination, but did find that grievant's actions warranted a two month suspension.

Delek sought to set aside the award, and the District Court for the Eastern District of Texas found that "The arbitrator exceeded his authority as set by an arguable construction and application of the CBA. The arbitrator made an implicit finding of just cause for discharge and improperly fashioned an alternate remedy. The District Court's decision, adopting the report and recommendation of the magistrate, can be found here.

The Union appealed, and the Fifth Circuit reversed. It determined that its prior decisions did not support the District Court's opinion. While recognizing that it has previously held that "[i]f a collective bargaining agreement defines "proper cause" to include a nonexhaustive lists of offenses, an arbitrator cannot ignore the natural consequences of his finding that a listed offense was committed, the Court found that principle inapplicable in this case. It noted :

Whereas the CBAs in Delta Queen and DuPont contemplated discharge as the only available sanction upon a finding of cause, the CBA here—like that in Albemarle—contemplated both discipline and discharge as available sanctions. ... Providing for the right to "fire and discipline for just cause," the CBA between Delek and the Union did not clearly mandate that any performance or safety issues required discharge. See Albemarle, 703 F.3d at 826 (holding that the availability of discharge, suspension, and discipline "for cause" did not "make clear that any violation of safety rules is an offense requiring discharge"). Rather, "by its terms, the CBA [between Delek and the Union] contemplate[d] situations in which a finding of `cause' could support lesser sanctions than terminations.

The Court also rejected Delek's argument that a final warning previously issued to grievant amounted to a binding last chance agreement.

Accordingly, a majority of the Court found that the Arbitrator had not exceeded his authority and his award was entitled to confirmation. The dissenting Judge believed "{Grievant's] accident-prone history and Delek's repeated attempts to discipline and warn him provide the requisite backdrop for holding that the arbitrator's finding of just cause to discipline was also an implicit finding of just cause to terminate."

Sunday, July 13, 2014

APWU wins one, loses one

APWU prevailed in a recent arbitration before Arbitrator Stephen Goldberg concerning the minimum qualifications needed for excessed employees transferring to a different unit, but a grievance concerning outsourcing Personal Vehicle Service (PVS) trucking operations in Columbus, OH. was denied by Arbitrator Shyman Das.

Arbitrator Goldberg upheld a grievance asserting that the Postal Service had violated the cba by reassigning employees excessed from the APWU bargaining unit to positions in another bargaining unit for which they did not meet the minimum qualifications. The Arbitrator rejected the Postal Service's argument that it did not and need not consider the physical qualifications stated in the Qualification Standards for Letter Carriers as part of the minimum qualifications an excess worker must meet prior to reassignment. He also rejected the employer's claim that it would be violating the Americans With Disabilities Act if it failed to reassign employees who could not meet the physical requirements of the position.

Arbitrator Das rejected a Union grievance which claimed that the Postal Service had breached a provision of its cba with APWU that required advance notice of contracting "which will have a significant impact on bargaining unit work." Relying on a prior award of Arbitrator Goldberg (discussed here), the Union claimed that the "mode conversion" in Columbus represented a significant impact on unit work. It noted the loss of 54 driving jobs and the likelihood that the work would never return to the unit. 

Rejecting this argument Arbitrator Das observed:

The contracting out at issue in this Columbus PVS case, in contrast to that in the Goldberg decision, pertains to one location within Ohio with 54 affected bargaining unit members, rather than all 13 locations in California with 800 affected bargaining unit members. In the California case, 10% of the total drivers in the craft nationwide were displaced. The Columbus mode conversion had an impact on 0.7% of the drivers in the bargaining unit and less than half a percent of the entire MVS unit. Over the four-year length of the HCR, the salary and benefits of the Columbus drivers amounted to around $16.4 million out of a total PVS salary and benefits cost of $3.9 billion and a total drivers salary and benefits cost of $2.4 billion. Considering the impact from a unit, rather than a local, perspective, the displacement of 54 drivers at a single installation, while significant to the individuals involved, does not, in my opinion, rise to the level of significant impact contemplated in the National Agreement.

APWU reports on the decision of Arbitrator Goldberg Arbitrator Rules: Excessed Employees Must Meet Minimum Qualifications Before Reassignment, and links to the award here. It reports on the Award of Arbitrator Das Arbitrator Denies Union's Grievance Protesting PVS Conversion To Highway Contract Route and links to his award here.

Sunday, June 29, 2014

Arbitrator conditions reinstatement on personal apology

Grievant was employed as a civilian dispatcher by the Cleveland Police Department. On March 6, 2013, he handled a call from the Board of Education reporting a school lock down and a belief that an unidentified individual was in route to the school to "shoot up" the facility and possibly those in it. Grievant's handling of the call, and his conduct immediately thereafter, was the subject of criticism by the management of the call center. He was ultimately disciplined for a number of acts of alleged misconduct, including improper use of his personal cell phone to conduct official business, leaving the dispatch center early without permission, and being "untruthful" concerning permission he claimed to have received from the Commander of the center concerning handling of the situation. He was also charged with using "disrespectful, derogatory and insubordinate language" when describing his interactions with the Commander. These conversations were recorded. Grievant's employment was terminated.  The Union grieved the termination and the matter was submitted to Arbitrator William Allport.

Arbitrator Allport found that grievant had engaged in much of the conduct alleged, but found termination too severe a penalty. With particular reference to Grievant's language concerning the Commander, Arbitrator Allport found Grievant's comments "at best ill advised, derogatory, and regretful." Given the "gravity" of the comments, together with Grievant's other transgressions, the Arbitrator concluded that Grievant should be reinstated without back pay. As part of the remedy, however, he also ordered Grievant to "compose and sign a Letter of Apology" directed to the Commander, sincerely apologizing for his remarks. This letter was to be personally delivered to the Commander by Grievant, accompanied by his Local President and Union Counsel, and was to be paired with an oral apology. At the option of the Commander, the letter could be posted in the center for a period of 45 days.

Arbitrator Allport appended to his award a sample Letter of Apology. The sample reads:

To: Commander S
I genuinely regret the insolent and disrespectful statements that I made respecting you on March 6, 2013. There is no excuse for such conduct. I was wrong to make those statements and I sincerely apologize to you for such inappropriate and offensive remarks.
I understand and agree that my conduct on March 6, 2014 was totally unacceptable by any standard.
I can assure you that I will never make disrespectful comments concerning you or any other supervisory employee of the Cleveland Police Department in the future.
I am hopeful that you will forgive me for this indiscretion.
Once again my sincere apology.

Should Grievant decline to write and deliver the letter, and the personal apology, the reinstatement called for in the Award would become "Void" and the original termination stand.

19actionnews reports on the dispute (Another worker fired from Cleveland police gets his job back), and links to Arbitrator Allport's Award here.