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.