Sunday, February 23, 2014

Teacher's use of corporal punishment and "disturbing attitude" warrant termination of employment

  Arbitrator Edmund Gerber has sustained charges of "conduct unbecoming a teacher" against a teacher accused of using corporal punishment against a four year old pre-kndergarten student. Grievant denied he struck the child but acknowledged he "tapped him on the rear."

Arbitrator Gerber did not find Grievant's testimony credible, and relied instead on the testimony of a witness, finding that Grievant did strike the child with force. Evaluating Grievant's conduct in light of a NJ statute proscribing corporal punishment with very limited exceptions, the Arbitrator found Grievant's conduct constituted conduct unbecoming  a teacher warranting discipline. Rejecting Grievant's contention that, in any case, the penalty was too severe, Arbitrator Gerber concluded:

[Grievant] argues that even if his conduct warrants disciplinary action, the penalty of removal is disproportionate to the offence and cites several cases involving corporal punishment where the courts found that removal was not warranted. ... Redcay stands for the proposition that one incident of corporal punishment should be balanced against a career of teaching and here [Grievant] has been a full time teacher for twelve years. However, none of the cited cases were factually similar to the instant matter. None of the cases involved such a young child, four years old, who was subjected to physical force to maintain discipline. ... Nor did the cases involve a teacher who refused to acknowledge or take responsibility for his or her actions. ... Such a disturbing attitude leaves open the prospect that a teacher  returned to the classroom may perpetuate such conduct. [Grievant] has exhibited a similar disturbing attitude. The District, by clear and convincing evidence, has established that [Grievant] struck Q.C., yet [Grievant] continued to deny he struck the child. ... [Grievant's] disturbing attitude leaves open the possibility that  his unacceptable conduct would be repeated.

Based on his finding that Grievant had in fact struck the child, and Grievant's "refusal to take responsibility", the Arbitrator concluded that Grievants removal from the District was warranted.

Arbitrator Gerber's decision can be found here.

Sunday, February 16, 2014

NLRB to reconsider standards for deferral to arbitration?

The NLRB has invited briefs on the question of whether it should modify its standards for deferral to arbitration awards. The Board's General Counsel has encouraged the Board to revisit this issue as explained in GC Memo 11-05 (here).

Specifically, the Board has requested briefing on the following questions:

1. Should the Board adhere to, modify, or abandon its existing standard for post-arbitral
deferral under Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268
NLRB 573 (1984)?

2. If the Board modifies the existing standard, should the Board adopt the standard
outlined by the General Counsel in GC Memorandum 11-05 (January 20, 2011) or
would some other modification of the existing standard be more appropriate: e.g., shifting the burden of proof, redefining “repugnant to the Act,” or reformulating the test for determining whether the arbitrator “adequately considered” the unfair labor practice issue?

3. If the Board modifies its existing post-arbitral deferral standard, would consequent
changes need to be made to the Board’s standards for determining whether to defer a
case to arbitration under Collyer Insulated Wire, 192 NLRB 837 (1971); United
Technologies Corp., 268 NLRB 557 (1984); and Dubo Mfg. Corp., 142 NLRB 431

4. If the Board modifies its existing post-arbitral deferral standard, would consequent
changes need to be made to the Board’s standards for determining whether to defer to
pre-arbitral grievance settlements under Alpha Beta, 273 NLRB 1546 (1985), review
denied sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th Cir. 1987); and Postal Service,
300 NLRB 196 (1990)?

Update: The NLRB has issued its decision in Babcock & Wilcox Construction Inc. substantially modifying its approach to deferral to arbitration awards. The Board's decision can be found here.
The Board's General Counsel has issued a memo to the Regions on implementing the Board's decision. here

Sunday, February 9, 2014

Claims of excessive force, videos and accurate reports

Grievant was employed as a police officer by the City of Omaha, Nebraska. He was called to a scene where he was required to subdue an individual to enable handcuffs to be applied. In the course of subduing the individual, grievant  was required to use three "open-handed hammer strikes." It was undisputed that this was an appropriate use of force. After the individual was handcuffed, grievant asserted that the individual again began moving in an attempt to assert control. Grievant again used three strikes, ceasing when the individual stopped resisting. Pursuant to Department policy, grievant prepared a "Chief's report" describing the use of force and the reasons use of force was necessary. The report described the use of 3-5 strikes, but did not clearly describe the second set of strikes. After a video taken by a bystander was released to the press, the Chief initiated an investigation. The investigation concluded that the report did not document the second set of strikes, and the Chief concluded that grievant "purposely omitted the information from any reports ... because you either thought that no one had witnessed the event or you felt that your second series of strikes ... was not in compliance with the Standard Operating Procedures of the Omaha Police Department." The Chief concluded that grievant had deliberately omitted reference to the second set of strikes to mislead his supervisors into beleiving that the second set of strikes did not occur. Because he claimed this engendered a lack of trust, the Chief terminated grievant's employment. 

The Police Union pursued the matter to arbitration, and Arbitrator Sherwood Malamud sustained the grievance, overturning the termination. Initially, the Arbitrator rejected the City's argument that the Chief's decision should only be set aside if the Arbitrator found the decision was arbitrary, capricious or discriminatory. He noted that such a test was much lower than the just cause standard required by the parties cba.  He noted that the City agreed that if the incident took place as described by the grievant in his testimony, the use of force was appropriate.Finding that the question of whether grievant used excessive force use of force was not the central focus of the award, Arbitrator Malamud noted:

The record is clear by any standard of proof that Grievant omitted mention of the second set of strikes. The issue is what inferences may be drawn from that omission. Was the omission deliberate and intentionally misleading? If so, then such a dishonest report may serve as the basis for termination of employment.

After reviewing the evidence, Arbitrator Malamud concluded that, while grievant’s report writing was “sloppy”, there was nothing to suggest that the report was written with the intent to deceive. Accordingly, he reduced the termination to a written reprimand. 

A similar analysis was performed by Arbitrator Harley Ogata in an award addressing a grievance filed on behalf of a St. Paul, MN police officer. In this case, grievant was dismissed for the alleged "intentional, willful and malicious" spraying of Aerosol Subject Restraint directly into the ear canal of an individual he was attempting to place into a police cruiser. He was also alleged to have pulled the individual into the vehicle by the hair.In addition, cited as a basis for his termination was grievant's claimed failure to timely submit an accurate report of the incident. 

 After an extensive review of a video of the incident taken by the in-car camera, and the other evidence of record, Arbitrator Ogata concluded that the City failed to prove that grievant had intentionally sprayed ASR into the individual's ear, but he did agree that grievant had failed to file "a complete and documented report." Accordingly he ordered the grievant reinstated with back pay less a one day suspension.

The Omaha Police Officer's Association has the award of Arbitrator Malamud here. Arbitrator Ogata's award can be found here. 


Sunday, February 2, 2014

Time limits in the grievance process- Three courts address the issue

Three recent decisions address the impact of time limits in  grievance procedures

In AFSCME Council 25 and Local 1103.14 v. Charter Township of Harrison, a Michigan Court of Appeals affirmed  a lower decision setting aside an arbitrator's award. The Union had filed a grievance concerning the calculation of several employees' service credit for pension purposes. Pursuant to the cba, the Township was required to respond to the grievance within ten days. The contract also provided that should either party fail to act within the contract's time frames "the grievance will be considered decided in favor of the opposite party." Notwithstanding this language, the Arbitrator determined that the grievances were not arbitrable because the grieved action had been taken by the pension board, not the Township.

The Union sought to set aside the award, and the lower court agreed. The Township appealed, and the Court of Appeals has affirmed that decision. In concluding that the Arbitrator had exceeded his authority under the cba the Court observed:

In the instant case, in order to avoid the result required under the unambiguous terms of the CBA—an award for plaintiffs—the arbitrators added new requirements to the agreement. Specifically, the arbitrators added a requirement that the dispute involve an actual violation, misinterpretation, or misapplication of the CBA—as opposed to an alleged one—to even be subject to arbitration in the first place, contrary to the clear language of the CBA.
The Township's failure to respond to the grievances within 10 days triggered the CBA's default provision, which mandated that the grievances be decided in plaintiffs' favor. By refusing to apply the clear and unambiguous language of the CBA and adding new requirements not present in the CBA, the arbitrators' awards were beyond the scope of the authority granted them under the agreement, and did not draw their essence from the agreement, but instead from the rules created by the arbitrators. Therefore, the trial court properly vacated the arbitrators' decisions and granted summary disposition in favor of plaintiffs.

In County of Warren v. PBA Local 331, the NJ Appellate Division affirmed a lower court decision  setting aside an arbitrator's award in favor of the PBA. The Union had filed a grievance concerning certain retirement benefits. The County argued that the PBA missed a ten day deadline for the processing of the grievance and sought to have it dismissed. The Union maintained that it had provided the County with the opportunity to raise a timeliness issue when the grievance was filed but that the County had not done so. The Arbitrator concluded that the County had waived the right to object to the grievance. The County sought to set aside the Arbitrator's award, and the lower court did so, finding no contractual support for the Arbitrator's conclusion. On the Union's appeal, the Appellate Division affirmed, noting:

Having found the grievance untimely, the arbitrator "read into" the [Agreement] a provision not found there, that the ten-day period for filing a grievance is waived if the County fails to object promptly to the untimely filing. In light of the express terms of the [Agreement] regarding the timelines for the filing of a grievance and the requirement that extensions of such periods be by mutual consent, the arbitrator's interpretation is not reasonably debatable. ... Accordingly, we affirm the order vacating the arbitration award substantially for the reasons expressed by Judge O'Connor.

Finally, in Phillips 66, Bayway Refinery v. Teamsters Local 877, the US District Court in NJ confirmed one award, and dismissed without prejudice a request to vacate another. The Union had filed an initial grievance concerning certain wage payments. Arbitrator Patrick Westerkamp rejected the Union's grievance as untimely. He suggested, however, that the Union might pursue a new grievance on a continuing violation theory. Such a grievance was filed, but Arbitrator Stanley Aiges rejected the Union's efforts to use the theory. Arbitrator Aiges determined "[T]he Union cannot be allowed to directly violate the time limits imposed upon it under the [CBA], and then be allowed to indirectly circumvent those time limits by filing a new grievance on the identical issue." Arbitrator Aiges noted that the cba provided that the Union "forfeits and waives" its right to arbitrate a grievance if it does not abide by the cba's time limits. The District Court granted the Employer's unopposed motion to confirm Arbitrator Aiges award. The Court rejected, however, the Employer's effort to vacate a decision of Arbitrator Jeffrey Tener. Arbitrator Tener had determined that a grievance was subject to arbitration, but left determination of the merits to a later award. Holding that the Award was not final, and that it would be inappropriate to review an interim award, the Court dismissed the motion to vacate without prejudice.