Sunday, December 27, 2015

Moral turpitude, just cause and an arbitrator's authority

The New Hampshire Supreme Court has affirmed a lower court's decision vacating an arbitrator's award overturning the termination of a University professor (the grievant).

The professor had intentionally lowered the evaluation students had given lecturer at the University of New Hampshire. He erased markings on the evaluations and entered different (and lower) ratings. The University concluded that this conduct amounted to an act of "moral turpitude" within the meaning of the cba and terminated his employment.

The cba defined just cause as "encompass[ing] professional incompetence, deliberate neglect of duty or moral turpitude." The cba further provided that "[i]f charges involving moral turpitude are sustained, the bargaining unit member may be terminated immediately and the bargaining unit member shall not be entitled to receive further pay or benefits.

The dispute was grieved, and Arbitrator Gary Altman overturned the termination. (Arbitrator overturns decision to fire UNH professor). Arbitrator Altman concluded that grievant had engaged in an act of moral turpitude, but nevertheless, because of several mitigating factors, found the termination did not comport with principles of just cause. H remanded the matter to the parties to negotiate an appropriate level of discipline.

The University sought to set aside the award as in excess of the Arbitrator's authority, and the superior court agreed, vacating the award.(UNH professor dismissed from job). The Union appealed, and the NH Supreme Court has now affirmed that decision. 

The Court concluded that:


  ... having found that [grievant] engaged in conduct constituting “moral turpitude” within the meaning of Article 14.2.1, “the arbitrator was barred from further inquiry because such additional probing constituted ignoring the plain language of the contract.” Poland Spring Corp., 314 F.3d at 34 (quotations and brackets omitted). “[O]nce an arbitrator finds that an employee has committed an act specifically listed in the collective bargaining agreement as providing just cause for termination, the arbitrator is not free to fashion a separate remedy apart from the one provided by the parties’ agreement.” Id. “If the parties intended mitigating circumstances to affect whether [moral turpitude] constitutes just cause for termination, then they would have expressed their intent in the contract.” Id. at 35. Because the arbitrator found that [grievant]  engaged in “moral turpitude” and that finding is not challenged on appeal, his decision to overturn UNH’s decision to terminate [grievant's] employment “due to mitigating circumstances impermissibly substituted his own notions of industrial justice over those established by the contract.” Id. 

The Court rejected the Union's argument that because the cba provides that a bargaining unit member "may" be terminated it did not preclude that Arbitrator from fashioning a remedy in accord with general just cause standards. The Court found that the cba expressly enumerated moral turpitude as a proper basis for discharge and that the arbitrator exceeded his authority by overturning that decision. 

The Court's decision (University Systems of New Hampshire Board of Trustees v. Dorfsman) can be found here. Two earlier post address court decisions finding that arbitrators did not exceed their authority in rejecting termination where the cba provided that certain conduct was "subject to discharge" or "subject to termination." See "Subject to discharge" and progressive discipline and "subject to termination" does not equal automatic termination.

Sunday, December 20, 2015

Arbitrator upholds discipline of E-911 dispatcher for delayed dispatch

Grievant was employed for eighteen years with the County of Onondaga's Department of Emergency Communications. On the morning of November 29, 2012 she was working as a fire dispatcher. After receiving a report from the 911 call taker about an individual reporting trouble breathing, grievant appropriately dispatched a rescue unit. Approximately 22 seconds later the caller reported that he smelled smoke. The call taker coded the report as a residential fire and the information was transmitted to grievant. Contrary to protocol, Grievant did not dispatch fire equipment but sent another dispatcher to check with the call taker. There were several more reports which, according to the County, should have resulted in grievant dispatching fire equipment, but grievant failed to do so until approximately five minutes after the initial call.

The County issued a written reprimand, alleging several violations of County work rules, including a failure to follow job instructions, failure to transmit pertinent information in a timely manner and failure to update events as needed.

Rejecting the grievance challenging the warning Arbitrator Gordon Mayo noted:

Firefighting is not an exact science, and each structure fire poses its own problems in fire suppression. Nonetheless, this five minute delay in proper dispatching may have contributed to the caller's demise, as he did not survive the fire. 

The Arbitrator rejected grievant's claim of confusion, and her reliance on a claimed "five minute rule." Upholding the reprimand he concluded:

Mistakes happen in the workplace. Except in extraordinary circumstances, such errors do not result in death. An E-911 Center is different - there life and death outcomes depend upon the dedicated employees who staff these facilities. [Grievant] has been by all accounts a fine employee over her eighteen year career. Here, however, her failure to act in accordance with normal protocols may have contributed to a man's death. As a result, the penalty of a written reprimand is an appropriate punishment. 

Arbitrator Mayo's award can be found here.


Sunday, November 22, 2015

"Subject to discharge" and progressive discipline

An earlier post ("subject to termination" does not equal automatic terminationnoted a decision of the Sixth Circuit confirming an arbitrator's award reinstating an employee fired for an offense that was "subject to termination" under the cba. The court noted that the arbitrator did not disregard the contract by finding that this language did not compel termination.

The Indiana Court of Appeals has recently reached a similar conclusion.

In  Madison County Board of Commissioners and Madison County Highway Department v. AFSCME Local 3609 the Court refused to set aside an arbitrator's award overturning the termination of two individuals (who happened to be the Union's President and Vice President). The two were dismissed after they were observed allegedly "loafing" on two consecutive days and taking an excessive lunch break on a third.

The applicable cba provided for progressive discipline for minor infractions, but also states that a single major infraction (or a third minor one) made an employee "subject to discharge."


The initial notice of suspension indicated that the employees were being investigated for minor violations. Ultimately, however, the termination notice stated that they had been found to have engaged in the major violations of theft (of time) and falsification of records by claiming to have worked when they were either "loafing" or taking an excessive lunch.

The arbitrator rejected the County's characterization of the offenses as major. He also found that the county had denied the grievants' due process by waiting until after the third incident to take action. Accordingly, he reduced the dismissal to a five day suspension. 

The County sought to set aside the award, but the trial court summarily confirmed it. The county appealed, arguing, inter alia, that the arbitrator's findings on due process improperly modified the cba and that by not upholding the discharges based on each employee's commission of three minor offenses the arbitrator had exceeded his authority.

The Court of Appeals rejected both of these claims. It found the County's position on the due process issue unsupported, finding that the Arbitrator could correctly conclude that the cba requirement that discipline for minor offense be progressive required that County to take disciplinary action promptly. Its failure to do so denied grievants the opportunity to correct their behavior. Moreover, the Court noted:  

[A]s the Union points out, the CBA states that the commission of a third class B minor infraction results in an employee being "Subject to Discharge"; it does not provide for automatic discharge. ... And finally, the CBA does not prohibit an arbitrator from modifying an employee's punishment; it merely prohibits modification of the CBA itself. The arbitrator did not modify the CBA by imposing a lesser punishment than discharge in this case.

The Court accordingly upheld the lower court's decision confirming the award. 


Sunday, November 15, 2015

Desire to avoid overtime is not an "operating need" justifying denial of leave

The cba between the Town of Bethlehem NY and the Bethlehem Police Association provides: 


All members [of the bargaining unit] shall receive five (5) personal leave days annually which shall be scheduled within the unit on the length of service by rank and subject to the reasonable operating needs of the Town.

This provision is implemented by the Department's General Order 58 which defines the circumstances for which such leave is appropriate and requires notice of the need for the leave. 

Because of a severe financial hardship, the City sought  to reduce the amount of overtime. As part of this  effort, the Department began to deny requests for personal leave when granting it would require another officer to work overtime to cover the shift. 

The Union grieved this policy as contrary to the cba, and the dispute was submitted to Arbitrator Louis Kash.

Arbitrator Kash sustained the grievance. While recognizing the City's need to reduce overtime, and its ability to more strictly limit personal leave to the circumstances described in the General Order, he concluded that the desire to avoid overtime was not a sufficient basis to deny leave. He distinguished operating needs, which the contract recognized as a basis for denial, from fiscal needs:

Operating needs are not the same thing as fiscal needs. They are related—the Town needs money to fund its operations—but the two should not be confused. The phrase “operating needs” refers to the internal workings of a department; in the Police Department it refers to things such as staffing and scheduling for three shifts, protocols and methods for policing, facilities and equipment for police, and the like. The phrase “fiscal needs” refers to securing, maximizing, prioritizing and allocating financial resources; it refers to things such as budgets and budget lines, reserves, the sale of bonds and bond ratings. Operating needs are managed by line departments, such as the Police Department; fiscal needs are managed by a central staff department, namely, the finance/budget department (or whatever department has that responsibility). Curtailing overtime is a fiscal, not operating, need of the Town.

Timesunion reports on the dispute Arbitrator: Bethlehem violated police contract by denying personal days and reproduces Arbitrator Kash's award here.

Sunday, November 8, 2015

Just cause, progressive discipline and zero tolerance


These topics are addressed in two recent arbitration awards.

In Minnesota Teamsters Public and Law Enforcement Union, Local No. 320 and ISD #200
Arbitrator James Abelsen overturned the dismissal of a school custodian accused of smoking marijuana on school grounds. Grievant had been working his regular shift and was attempting to unclog a toilet using a plunger and chemicals. After completing that project, grievant stepped outside where he remained for approximately two minutes. When he returned, several other employees reported the smell of marijuana coming from grievant. Grievant denied having smoked marijuana, attributing any smell to the project he had just completed. The School Board conducted an investigation and ultimately terminated his employment. The termination was submitted to arbitration and arbitrator Abelsen found "the only reasonable conclusion ... is that the District clearly established that the Grievant violated School District policy." Nevertheless, he further concluded that the termination was not supported by just cause, observing:

The employer does not have an articulated policy of zero tolerance for violations of this nature, but in fact has a policy which favors a progressive form of discipline for first offenders. Nevertheless, the employer chose the ultimate penalty of termination and offered no reasonable explanation for that decision when a lesser form of discipline was available and provided for in the employer's policy. To discharge the Grievant under these circumstances is unfair and unjust.

A similar result was reached by Arbitrator Timothy Hatfield in Town of Framingham and Massachusetts Laborers' District Council. In that case, the Town terminated the employment of a crossing guard who had called in sick but who was found to be working for a different employer during the same shift. While finding it undisputed that grievant had called in sick and sought to use paid sick time for the time she was working for a different employer, the Arbitrator found termination too severe a penalty. He noted grievant's fifteen year employment history and found termination "not proportional to the offense committed." He rejected the Town's reliance on arbitration awards it claimed supported its case, noting:

These cases are distinguishable, however, as they involve either instances of long-term abuse of worker's compensation, or sick leave abuse where dishonesty and/or sick leave falsification is directly written into the collective bargaining agreement as a terminable offense. Here, in comparison, Section 18.2 of the Personnel Bylaws states that employees who fraudulently report illness to secure sick leave with pay shall be subject to disciplinary measures up to and including discharge. Discharge is not the contractually mandated outcome.

 Arbitrator Hatfield reduced the termination to a ten day suspension.

Sunday, November 1, 2015

Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination

A Sheriff's Deputy for the Sagamon County Sheriff's Department was dismissed for alleged theft of two plants form a City park. That termination was submitted to arbitration. That decision is discussed in an earlier post (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension). Approximately a year after the termination, and before a resolution of her grievance, grievant was accused of retail theft (i.e., shoplifting), and  entered a guilty plea to the charge. Thereafter Arbitrator McGilligan reversed the termination, but upheld instead a 30 day suspension for failure to follow Department policy on abandoned property, and a 60 day suspension for the post termination misconduct. The City challenged the award and the court remanded the dispute for reconsideration using a different  (lower) burden of proof, and found that the Arbitrator  improperly considered the shoplifting issue, which was not before him. In a subsequent award Arbitrator McGilligan again found the termination to be without just cause and again ordered her reinstatement subject to a 30 day suspension for failing to follow the department's policy on abandoned property  .

Grievant was reinstated and immediately put on administrative leave pending a departmental investigation of the retail theft issue. The Department again terminated grievant's employment. That termination was also grieved, and was submitted to Arbitrator Timothy Tobin for resolution.

The Department claimed that grievant was no longer effectively able to carry out her duties as a Deputy Sheriff, and that it "cannot have an officer on the streets attempting to enforce the law when she herself does not even follow the law."

Arbitrator Tobin rejected the Department's discipline. He concluded:

I find that the Employer did not shoulder the burden of proving that the Grievant's discharge on May 20,2015 was for just cause. It is impossible for an employer to discharge a non-employee for just cause.
***
The discharge cannot be upheld because the Grievant was not an employee on April 24, 2013, the day the retail theft in question was committed. 

He also found that the Department had also improperly considered the earlier claim of theft of plants since the grievant had been acquitted of that charge by a jury.  

IllinoisTimes reports on the decision (Cop-turned-thief ordered back to work) and links to Arbitrator Timon's award here.

Chicago Kent Law Review has a student note by Holly G. Eubanks (Expanding the After-Acquired Evidence Defense to Include Post-Termination Misconduct) discussing the issue of post termination conduct in employment litigation.

Update: According to press reports, the Illinois County court has vacated the award of Arbitrator Timon as contrary to public policy. Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft




Sunday, October 25, 2015

Termination of police officer for Facebook post overturned - City prematurely released information to media

During the disruption following the shooting of Michael Brown in Ferguson, Missouri, a police officer in Elgin, Illinois posted two entries concerning the dispute. The first included a link to a video purporting to show Brown stealing cigarillos from a local store. Under the link to the video the officer wrote "Hmmm ...innocent victim my ass. Did society a favor." A couple of days later the officer posted a second entry. This entry contained a photo of a Missouri State Highway officer with a protester. Both individuals in the photo are making a hand gesture which the officer interpreted as a gang sign. Under the photo he wrote " This is Missouri State Highway Patrol Capt. Ron Johnson. He's also in the Chicago Tribune hugging protesters Just awesome...appears to be the enemy within."

While the officer's settings were set so his posts were visible only to his friends, one of his friends, a Sergeant in the Department, saw the initial post and reported it to superiors in the Department. Grievant was spoken to about the posting, and,while there was a dispute about the content of the conversation, it was undisputed that the officer was told that the posting was inappropriate and as a result of the conversation he removed everything following  "Hmmm...." Grievant removed the second post after he learned that what he believed to be a gang sign was a fraternity gesture.

The City conducted an investigation of the officer's Facebook posts. As part of the investigation it met with community representatives and the investigation received considerable local news coverage. That coverage included references to the Facebook posts and other details of the investigation. Following the investigation the officer's employment was terminated. That termination was grieved, and the dispute submitted to Arbitrator Aaron Wolff for resolution.

Arbitrator Wolff described the issue before him:

Discharge of Elgin police officer with 171/2 years service for two postings on his Facebook account in August 2014, allegedly made in violation of Elgin's Social Media Policy, at the height of the Ferguson, Missouri riots after a white policeman shot and killed an 18 year old black man. 

The Union (Policemen's Benevolent and Protective Association, Unit 54) raised a number of arguments, including a claim that that the City's action violated grievant's First Amendment rights.

Arbitrator Wolff found it unnecessary to reach the First Amendment issue, finding instead that the City's actions, while the investigation was pending, of providing information to the media concerning facts in dispute and copies of the Facebook postings undermined the City's claim of just cause. Arbitrator Wolff concluded:

The above record of expedited release of documents (fn30) several weeks prior to completion of the investigation of [grievant] on September 19 was a clear violation of the City's Police Department rules and regulations and is a bar to finding just cause for the discharge. ...                                      
***                                         
In light of that finding and conclusion there is no need to decide the First Amendment issue or other issues in this case. It should be noted, however, that both City staff employees and Police Department employees released confidential information to the public while the investigation was pending and, therefore, both violated the Collective Bargaining Agreement ....
____
fn30 ...An unanswered question in this case is how the media learned of the investigation in order to make any FOIA requests. ...

Nonetheless, Arbitrator Wolff did find cause for a six month suspension for grievant's failure to follow what he found was the direction to grievant to remove posts relating to the Ferguson incidents. While noting that the First Amendment issue remained unresolved, he concluded "Grievant should have followed the golden rule of obeying orders and grieving them later. At that time and manner he could find out if the postings were protected by the First Amendment."

ElginetMedia links to the transcript of the hearings, and Arbitrator Wolff's award at  Elgin Police ordered to rehire officer wrongfully fired!


Sunday, October 18, 2015

Arbitration and public policy- claims of police dishonesty and violence in the workplace

Two recent cases address public policy challenges to arbitrators' awards.

 In  Fraternal Order of Police, Lodge 8 v. City of Cleveland the City sought to vacate an award of Arbitrator Nels Nelson. The award (which can be found here) modified the City's termination of a police Sergeant and the demotion of a Lieutenant and Captain. The discipline was imposed on the three in connection with a pursuit that ended with a fatal shooting. The Captain and Lieutenant were demoted for their alleged supervisory failures, and the sergeant was dismissed for allegedly taking himself out of action during the case and parking along a City street for five minutes.

The Arbitrator limited the demotions of the two senior officers to thirteen months, after which they would be restored to their former positions. As to the dismissed Sergeant, the Arbitrator ordered is reinstatement as a patrolman until July of 2015, at which time he would be restored to his former position as a Sergeant.

The City sought to set aside the award as flawed and, with regard to the reversal of the termination, as contrary to public policy. The lower court rejected these efforts and the City appealed to the Court of Appeals of Ohio.  The Court of Appeals affirmed the lower court's refusal to set aside the award. 

Regarding the public policy claim the Court observed:

In support of its claim, the city relies on Ironton v. Rist, 4th Dist. Lawrence No. 10CA10, 2010-Ohio-5292, wherein an arbitrator reinstated a police officer who had been terminated for falsifying a police report. The trial court vacated the arbitration award on public policy grounds, relying on R.C. 737.11. In upholding the trial court's decision, the Fourth District recognized that Ohio has "a dominant, well-defined public policy against the reinstatement of an officer who falsifies a police report." Id. at ¶ 20. In addition to R.C. 737.11, the Fourth District further relied on Ohio case law recognizing that "honesty is vital to the effective performance of these duties and to ensuring public trust and confidence in the police force." Id. at ¶ 20. 

The court rejected the City's reliance on Rist. It noted that while Arbitrator Nelson found that some discipline was appropriate, he found that the allegation the Sergeant had been dishonest in his report was unfounded. As a result there was no basis for the City's public policy claim and the award was entitled to confirmation.

Reaching a different result, the Connecticut Appellate Court, in Bridgeport Board of Education v. NAGE, LocalRI-200 reversed a lower court and held that an award of the State Board of Mediation and Arbitration was contrary to public policy and should be vacated. The grievant in that case had been dismissed for sending a letter to the City's Director of Labor Relations with copies to the Mayor, the police department and the union. The letter's author identified himself as a school custodian and complained about his treatment by an operations supervisor.  The letter asserted that the supervisor had made untrue statements about grievant and contained detailed descriptions of the mass shootings at Columbine and Virginia Tech, and indicated that if the supervisor "can't control the statements he can't control the out come. If I'm being punished for breaking rules then we all should."

Grievant's employment was terminated for violation of the City's prohibition on violence or the promotion of fighting and  disruptive behavior. 


In ruling on the grievance concerning the dismissal, the Board found the dismissal was without just cause. It converted the dismissal to a ten day suspension and required the referral of grievant to the Company's Employee Assistance Program. 


The City sought to set aside the award, but the Connecticut Superior Court refused (here) observing that to "require that an employee be discharged whenever an act of workplace violence is established, would undermine the arbitration process to which all parties have agreed, as a result of collective bargaining." 


The City appealed, and the Appellate Court reversed. The Court analyzed the case under the test set forth by the Connecticut Supreme Court in Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199 (discussed here). It determined that there was an explicit public policy against violence in the workplace, and noted an Executive Order establishing a zero tolerance policy prohibiting state employees from committing or threatening to commit violent acts in the workplace. The Court also determined that a school custodian's employment involves a vulnerable school population implicating the public safety and public trust, and that "[t]hreats of a mass atrocity against students and educators falls at the very core of the public policies prohibiting workplace violence  ...." Finally the Court determined that a sanction any lesser than dismissal "would send an unacceptable message to the public and other employees that a threat by an employee to commit random shootings in an educational setting is permissible or excusable." 

Sunday, October 11, 2015

"Functus Officio" precludes arbitrator from reconsidering award

An earlier post, "Functus officio" precludes arbitrator from substituting new award for an earlier one, discussed a decision of the District Court in Florida vacating an arbitrator's award as being precluded by the doctrine of "functus officio." The Eleventh Circuit has now affirmed that decision.

CWA filed a grievance against Verizon Florida concerning what it claimed was the improper application of the parties bumping procedures. The relevant contract language provided that an employee could bump if he/she previously held the job into which they sought to bump or if they could perform the job with minimum additional training.

The parties refused to stipulate an issue, and there was apparently some uncertainty concerning the thrust of the grievance, i.e whether it focused on the previously held  provision or the minimal training provision. However the Union's representative described the minimum additional training provision as the crux of the proceeding.

The arbitrator issued a decision finding that most of the grievants would require more than minimal training. However he also found that two of the grievants had previously been 'on loan' to the position in issue and were there eligible to bump under the "previously held" provisio.

The Union sought clarification from the arbitrator concerning two other employees who had also been on loan. The Company challenged the Union's request and also sought reconsideration of the award, claiming that the dispute was limited solely to the question of whether the employees required more than minimal training.

Shortly after receiving the Company's request the Arbitrator issued a new decision eliminating his discussion of the previously held position issue and denying the Union's grievance entirely. As noted in the earlier post, the District Court confirmed the initial award, concluding that it was a final award and that the arbitrator was without authority to issue the second award.

In affirming that decision the Eleventh Circuit concludes: 

The primary question in this labor arbitration appeal is an unusual one: did the arbitrator exceed his power by issuing a substituted award after he determined that he had exceeded his power in the original award? After close review and oral argument, we agree with the district court that he did, and we affirm.

The Court found that the parties' cba incorporated AAA Rule 40 which essentially codified the functus officio doctrine and that, while the arbitrator was persuaded that his initial award was in error, Rule 40  precluded him from issuing the second award.

The Eleventh Circuit's decision can be found here.

Sunday, September 27, 2015

"Clear and convincing" circumstantial evidence sufficient to support termination


Grievant was employed by the City of Lakeville, MN as a police officer, a position he held for approximately seventeen years. In addition grievant had extensive experience as a writer and reporter and owned and operated his own business publishing weekly newspapers in local communities.

During two high profile police investigations the media reported details of the investigations that the City claimed could only be known by someone involved in the investigations or someone having knowledge as a member of the police department.

The City conducted an internal investigation in an effort to determine the source of the leak. While grievant denied involvement, the investigation concluded that he had been the media's source. The City terminated his employment for releasing information on an active investigation to the media without authorization and for being dishonest when asked whether he had released the information.

The grievance over the termination was submitted to Arbitrator Rolland Toenges for resolution.

After a hearing, Arbitrator Toenges found that while grievant continued to deny being the source of the leak he acknowledged telling the press that "something big was going on." Grievant also acknowledged being social and professional friends with a reporter who had received unauthorized information. The Arbitrator also observed that grievant, unlike others involved in the investigations,  declined to release his phone records to the Department.

Reviewing all of the evidence, and despite the Union's claim that the investigation had been inadequate, Arbitrator Toenges concluded that grievant had in fact released confidential information without authorization. He noted:

The evidence supporting the Employers case is mostly circumstantial. The media, as is their practice, will not voluntarily disclose the source of their information. There is no witness testimony that actually saw or heard the Grievant communicating the unauthorized information to the media. However, there is clear and convincing evidence supporting the charges against the Grievant. The record provides sufficient proof that it is substantially more likely than not that it was the Grievant who leaked the information to the media. 

Finding that grievant's actions caused a breach of confidence between other agencies and the Lakewood Police Department and so "irreparably damaged" the trust and confidence of his coworkers the Arbitrator concluded that he could no longer function as a member of the Department.

Accordingly he found just cause for the termination of grievant's employment.

Arbitrator Toenges' award can be found here.

Sunday, September 20, 2015

Zero tolerance doesn't support termination but arbitrator imposes a last chance agreement

The Greater Egg Harbor Regional High School District sought  to terminate the tenure of a computer operator/secretary. In doing so the District relied on its "zero tolerance" policy relating to alcohol.

The Respondent ('"grievant") had been employed for approximately twenty years. In March of 2015 she was found to have consumed alcohol during school hours while on school premises. This was the only incident of misconduct in the workplace.

An investigation was begun but was delayed somewhat when grievant entered an inpatient employee assistance program. Upon completion of that program grievant was cleared to return to work without restriction.

Arbitrator Ernest Weiss rejected the District's efforts to terminate grievant's tenure. He noted that there was no evidence supporting the Superintendent's belief that grievant had been under the influence, and that no fitness for duty exam had been requested. Arbitrator Weiss observed:

Given her twenty years of otherwise unblemished behavior, I was not persuade by Superintendent Keenan's testimony regarding the possibility of repeated future behavior. There is no showing that her rehabilitated status would not hold under a last chance agreement.

Accordingly he included as part of his award a last chance agreement which he directed the parties to enter into. Pursuant to the lca grievant agreed "never again to imbibe in the consumption of alcohol during school hours or on school property." The agreement also provided for testing, with immediate termination resulting from a blood alcohol content over .02% "without tenure charges and subject only to the Employee's right to see that the test was properly performed."

Arbitrator Weiss' award can be found here.  Issues arising under a last chance agreement imposed by the arbitrator are discussed in Reinstatement with Conditions-Last Chance Awards


Sunday, September 13, 2015

Off duty misconduct, just cause, burden of proof and leniency



All of these topics are  addressed in a recent award by Arbitrator Howell Lankford in International Association of Firefighters, Local 27 and City of Seattle Fire Department. Arbitrator Lankford denies the grievance filed on behalf of a firefighter for actions relating to an alleged assault on homeless individuals in the City's Pioneer Square area.

While off duty, grievant and two friends attended a Seattle Sounders game. Before, during and after the game, grievant consumed a number of drinks. At some point grievant and his friends were walking to a local restaurant when they observed several homeless people on or near the Fallen Fireman's Memorial. A dispute ensued and became physical and the fighting continued for about eight minutes. The identity of the aggressor was disputed, but grievant and his friends were arrested for assault.

After an investigation, grievant's employment was terminated. The charges specified in the Notice of Termination included: 1. Aggressive Fighting with Homeless Victims, 2. Interference with Law Enforcement Investigation, 3. Misuse of Position, and 4 Negative Community Impact.

The termination was grieved and ultimately brought to arbitration before Arbitrator Lankford.

In deciding the issue, Arbitrator Lankford first reviewed the concept of "just cause." He observed:

Many learned volumes have been written on the notion of just cause in American labor arbitration. In the end, however, just cause is simply a distillation of our shared response to some of the common, occasional shortcomings of employee discipline. Most of the issues arising under the just cause standard divide into three classes: It is not just to discipline an employee for misbehavior that he or she did not actually commit. It is not just to exact a disciplinary penalty which the employee could not have known to be a possible consequence of such misbehavior. And it is not just to administer the disciplinary process in fundamentally unfair and irregular ways.5

__________
5The Department proposes arbitrator Daugherty’s “seven tests” from Enterprise Wire and other reported cases ... . The “seven tests” have generated a very substantial body of scholarly discussion, but that approach does not represent the view of a majority—or even a very substantial minority—of current main line American labor arbitrators.


Applying these standards, Arbitrator Lankford addressed the appropriate burden of proof. He rejected the Union's contention that the City should be held to a "beyond a reasonable doubt" standard, but also rejected the City's claim that it should be held only to a preponderance of the evidence test. He concluded:

The Union points out that NAA arbitrator Mike Beck wrote in 2005 in a case between SEIU 925 and King County that “...in discharge cases involving alleged...stigmatizing behavior a significant number of arbitrators impose a beyond a reasonable doubt standard.” (At 24.) But in that case arbitrator Beck honored the ‘beyond a reasonable doubt’ standard only in the breach. The cited case did involve stigmatizing misbehavior and what arbitrator Beck actually required was proof by clear and convincing evidence. In my first 30-odd years as a labor arbitrator, I have not yet heard or read a case in which it would have been appropriate to require proof beyond a reasonable doubt. On the other hand, I agree that a majority of main line labor arbitrators recognize that some discharge cases—those alleging misbehavior that would be criminal and would have catastrophic career implications—require proof by clear and convincing evidence. Because this is not such a factually close case that the measure of the City’s burden of proof matters to the outcome, I assume without deciding that the City must prove its case by clear and convincing evidence.

On the merits, and relying primarily on several recorded 911 calls made at the time of the incident, the Arbitrator concluded that the City had established that grievant had instigated, escalated and returned after having an opportunity to disengage. He rejected the Union's claim that grievant's acquittal on a misdemeanor charge of assault and malicious harassment of the homeless preluded a finding of just cause, noting the differing burden's of proof and evidentiary standards. He also found that the City had established that grievant interfered with the police investigation by actively misleading police officers on the scene. He also concluded that the evidence "clearly established" that grievant's conduct had a significant impact on the Department's relationship with the community, and in particular the homeless community. However he found unsupported the allegation grievant had requested special consideration because of his status as a firefighter. Based on these findings, he found the City had just cause for the termination.

Finally he declined the Union's request that grievant be given a "second chance" because he had  entered and successfully completed an alcohol rehabilitation program, noting:

In the past, as in the case of [], the Department has given some firefighters a second chance in light of such a voluntary submission to treatment. If I were the Department, I might extend that same discretion to [grievant], but that is the Department’s discretion, not an arbitrator’s.25 The Department established just cause for his discharge by clear and convincing evidence, and the Union’s grievance must be dismissed.
__
25The Department quotes the renowned arbitrator Whitney McCoy, from the very first volune of BNA’s collection of labor arbitration awards: “The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved—in other words, where there has been an abuse of discretion.” Stoakham Pipe Fittings Co., 1 LA 160, 162 (1945). One part of arbitrator Daugherty’s Enterprise Wire discussion that remains valid almost 50 years after its publication is his observation that “lieniency is the prerogative of the employer rather than of the arbitrator; and the latter is not supposed to substitute his judgment in this area for that of the company unless there is compelling evidence that the company abused its discretion.” 46 LA 359, n4 (1966). In this instance, I cannot find a basis for concluding that the Department’s decision to discharge [grievant] was an abuse of its discretion.

The Seattle Times reports on this dispute, Seattle firefighter, acquitted in attack on homeless in park, fails to win his job back and links to the award here.

For another case discussing the impact of an acquittal on the just cause issue see Acquitted of criminal charges, but just cause for dismissal



Sunday, August 30, 2015

A tardy teacher, tenure and due process

A recent case involving a school board's efforts to revoke a teacher's tenure for excessive absence, and an arbitrator's decision rejecting that effort, has received considerable publicity (New Brunswick teacher was late more than 110 times, but district can't fire him;  $90,000-a-year teacher late for work 111 times but keeps his job;  Chronically late N.J. teacher: breakfast routine was downfall).  The award of Arbitrator David Gregory explains his rationale.

Grievant had been late 111 times over two academic years. The School Board sought to revoke his tenure. Grievant claimed that despite his tardiness he delivered a "superb educational experience" to his students. Arbitrator Gregory rejected the positions of both the School Board and the grievant, finding both extreme and untenable.

He found that the Board had proven chronic tardiness and that grievant's "cascades of tardiness" was never plausibly explained. While acknowledging grievant's "innovative" legal arguments  he largely rejected grievant's purported justification, noting:

Assuming arguendo that Respondent is "all business" once he arrives, his self serving inflated characterization of his substantive abilities misses the essential point. His students are fully entitled to receive Respondent's very best-efforts for the entire period, and not merely for that remaining portion of the period following Respondent's chronically late arrivals.

The Arbitrator observed that withholding increment increases did not appear to have improved grievant's punctuality. Nevertheless he found that revocation of tenure was unsupported, noting:

...Respondent is entitled to due process and fundamental fairness. Due process is best understood as that which is due under the circumstances. With a decade and a half of service, progressive discipline and due process sufficiently militate against summary discharge in this case. Once charges are so well proven, I believe that the Employer is usually entitled to the imposition of the penalty sought. This is the established Elkouri principle. This case presents the rare exception to the general rule, and is also in full accord with the Elkouri principle.

Accordingly, Arbitrator Gregory concluded that Grievant should remain in unpaid status for the chronic tardiness until January 1, 2016.

Arbitrator Gregory's award can be found here.

Sunday, August 23, 2015

Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Grievant was employed as a bus driver with the Manhattan and Bronx Surface Transit Operating Authority. He worked as a bus operator for four hours per day, and he was also a union official and worked eight hours per day (on Transit Authority paid release time) on labor-management duties. In December of 2012 a bus dispatcher filed a complaint alleging that grievant had repeatedly sexually harassed her. In January 2013, at the request of the Union (Transport Workers Union of America, Local 100),  grievant was placed on union paid release time.

In April 2013 the Authority's EEO office issued a report finding reasonable cause to believe that grievant had engaged in conduct in violation of the Authority's sexual harassment policy. The TA presented disciplinary charges against grievant, but the Union disputed the Authority's power to maintain disciplinary action against an employee on union-paid release time. The Union claimed that placement on union paid release time created a "safe haven" protecting an employee from discipline.  The issue was submitted to an arbitrator  who upheld the Union's position. The Arbitrator concluded that the cba contained specific directives governing prohibited activities for employees on release time.

The Union filed an action seeking to confirm the award and the NY Supreme Court (the trial court) confirmed the award. The Authority appealed, and the Appellate Division has now reversed.

Initially the Court acknowledged  that:

in considering the issue before us, we must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.

Answering the question in the affirmative, the Court held that assuming the arbitrator's award was contractually correct, the decision itself was contrary to public policy. While noting the limited scope of review of arbitrators awards, and the substantial deference they are owed, the Court determined:

...this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections. Knowing that complaints against employees like [grievant] will be impeded by CBA protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority's ability to promptly remedy such behavior. It is also imperative that employers have the unfettered ability to discipline employees such as [grievant] in order to both punish the offender and to deter other employees from engaging in such behavior.

The Court noted that it was not substituting its judgment for that of the arbitrator on the contractual question, nor was it imposing a remedy it felt was appropriate. Rather, "we simply vacate the award as violative of public policy."

The Court's decision Matter of Phillips v. Manhattan & Bronx Surface TR. Operating Auth. can be found here.


Sunday, August 16, 2015

Court confirms arbitrator's award upholding discipline for false statements in grievance documents

In April 2014, Arbitrator Harry S. Crump issued an award upholding the discipline of a Blaine, MN police officer for making false statements in her grievance. That award is discussed here. The officer had received a reprimand for allegedly working a “Reimbursable Police Services” assignment (i.e. overtime paid by a private entity) while on call. Blaine PD policy allowed on call officers to work this overtime provided they arranged for another officer to cover their on call duties. In the grievance challenging the reprimand, grievant asserted that she had made arrangements with “JS," another officer, to cover her  on call assignment and had informed her Sergeant of the change. Concerned about an apparent discrepancy between between the statement in the grievance and grievant’s previous statements, a Blaine Lieutenant arranged for an internal affairs investigation. That investigation concluded that the representations in the grievance were false, and as a result the Chief  imposed a four day disciplinary suspension. 

 Arbitrator Crump denied the grievance over the suspension, concluding:

there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.

The Union sought to set aside the Award as contrary to public policy. The Union claimed that disciplining an employee for statements made in the grievance process undermined what it believed to be an explicit public policy promoting resolution of workplace disputes through the use of grievance arbitration.

The district court rejected this effort, and the Minnesota Court of Appeals has now affirmed. Law Enforcement Services, Inc. v. Blaine Police Department

The Court summarized the Unions position:

the union asks us to recognize a PELRA-based public policy that prohibits a public employer from disciplining an employee based on the employee's statements in a grievance. The union argues that "PELRA's public policy [prohibits] a public employer from disciplining a grievant for lying in her grievance." 

The court declined to accept this position. Noting the limited scope of review of arbitration awards, and the Union’s inability to identify any explicit public policy supporting its position the Court concluded:


The arbitration award in this case does not explicitly conflict with PELRA's policy favoring grievance arbitration because the dispute between [Grievant] and the department was resolved in grievance arbitration. In fact, the award does not explicitly conflict with any of PELRA's provisions: although PELRA sets forth a public policy favoring the use of grievance arbitration to resolve disputes between public employers and employees, it does not prohibit discipline based on statements in a grievance. 

The Court therefore affirmed the district court's order confirming the arbitration award. 

Sunday, August 9, 2015

Arbitrator: City can verify dependent coverage under Health Benefits Program

In 2010, San Antonio firefighters represented by IAFF, Local 624 had a "passive" enrollment during the open period of the City's health care plan. Employees were not required to affirmative confirm dependent coverage; if a firefighter did nothing coverage would continue for previously listed dependents. That same year the City arranged for an outside consultant to audit the health care plan. That audit concluded that appropriate documentation for dependent family members, including birth and marriage certificates, was missing from some employees records.

In 2012, in order to confirm or verify that dependents covered under the family medical plan remained eligible, the City notified employees that they must actively enroll during the annual open period. The Union challenged this action and, after a period of litigation, the dispute was submitted to Arbitrator Maretta Comfort Toedt for resolution.

The Union raised a number of claims in support of its grievance. Initially it asserted that the City's action in requiring verification of dependent coverage violated the Maintenance of Standards provision of the cba. The Union argued that the "standard" in question was the Company's practice of never previously having conducted  audits of covered dependents. Arbitrator Toedt rejected this contention, noting:

"Freedom from audits” does not fall within the parties’ definition of a standard, privilege, or working condition. While the City may not have conducted audits for the purpose of verifying eligibility for dependent coverage in the past, this is not the same as a standard, privilege, or working condition. I agree with the City on this point; the grievance does not properly identify a standard, privilege or working condition as contemplated under Article 9. 

The Union also claimed that the Company's conduct breached the cba's guarantee that health care benefits for active Fire Fighters "shall not be terminated, altered, modified or reduced during the term of the Agreement." The Arbitrator concluded that the Union's reliance on this provision was misplaced. She observed:

While Article 25, Section 3 provides that the City will not terminate, alter, modify or reduce health care benefits during the term of the Agreement, it does not prohibit the City from determining eligibility and terminating coverage for individuals if they no longer meet the eligibility criteria for receiving those benefits. [footnote omitted]

Finally, the Arbitrator concluded that the benefit plan's Master Contract Document, which was incorporated into the cab, "implicitly but clearly entitled the City to conduct reasonable inquiries from time to time to confirm eligibility and to determine coverage."

Arbitrator Toedt declined to rule on the stipulated question of whether the City had the ability to discipline or terminate employees for failing to provide dependent coverage information, noting the absence of any lie case before her. She noted :

The most that I can say is that any case in which an employee is disciplined or discharged for failing to provide such information must be decided on a case-by-case basis by the arbitrator to whom it is presented. The City must prove the facts underlying the discipline. That arbitrator must determine whether the discipline or discharge was for just cause, which may include, among other considerations, whether notice was provided, progressive discipline, the appropriateness of the discipline, and possibly other due process issues. I can say no more than that I have interpreted the language of the CBA/MCD to mean that the City can request such information without violating either the CBA or the MCD. 

The San Antonio Express News reports on the case, and links to Arbitrator Toedt's award, here

Sunday, August 2, 2015

Arbitrator's failure to follow prior award not a basis for setting aside award

So held  the Eight Circuit in SBC Advanced Solutions v. Communications Workers of America. The grievance in issue involved a claim by employees that they were performing work of a higher classification and were entitled to a pay differential. The cba called for such a differential when "qualified" employees were "temporarily scheduled or assigned" to perform such work for a period of two or more hours in a week. Arbitrator William McKee sustained the grievance. He initially rejected the Employer's assertion that the employees must be test qualified to perform the higher level work to be eligible for compensation. In doing so he relied in part on prior awards he had issued as well as evidence of bargaining history to conclude that the Union had rejected a Company proposal during contract negotiations that would have required test qualification.

 He then turned to the question of whether the employees had been "temporarily assigned" to perform the higher level work. He concluded that "a]n assignment of higher-level work is temporary until such time as the Company chooses to change the job description of the lower titles to include those duties." In reaching this conclusion Arbitrator McKee "respectfully depart[ed]" from the awards  of two prior arbitrators who had determined that work assignments ceased to be temporary once they became a permanent part of an employee's workload. Arbitrator McKee found that these earlier awards would allow the Company to violate the contract as long as it maintained a violation long enough for the assignment to be deemed permanent. Accordingly he sustained the grievance and retained jurisdiction to resolve disputes about individual employees eligibility for the differential.

The Company sought to set aside the award, arguing that the award failed to draw its essence from the cba and that Arbitrator McKee had erred in failing to follow the earlier awards. The District Court rejected these claims (here), and the Eighth Circuit has now affirmed.

 With specific reference to the argument that the Arbitrator erred in failing to follow the earlier awards on the question of when an assignment was "temporary," the Court concluded:

Arbitrator McKee recognized ... that [his] interpretation was contrary to the interpretation of temporariness in the Heinz and Fowler awards. As we stated in Trailways  "we recognize that there may be situations where an arbitrator will refuse to defer to a prior award involving the same issue," including when "`(1) [t]he previous decision was clearly an instance of bad judgment; (2) the decision was made without the benefit of some important and relevant facts or considerations; or (3) new conditions have arisen questioning the reasonableness of the continued application of the decision.'" 807 F.3d at 1425 n.16 (quoting F. Elkouri & E. Elkouri, How Arbitration Works 428 (BNA 4th ed. 1985)).

Arbitrator McKee explained his declination of deference to a prior award involving a similar dispute by stating his disagreement with the prior decisions's interpretation of the contract's provisions. According to Arbitrator McKee, the Heinsz and Fowler Awards interpreted temporariness in a manner that gave the Company an incentive to violate the CBA as long as they violated it consistently for a given amount of time (or at least until the higher-classified job functions were performed long enough by lower-classified employees to be considered a permanent part of their job). Arbitrator McKee concluded that this interpretation was erroneous because it gave the Company the unilateral ability to render the temporariness requirement meaningless. In sum, Arbitrator McKee's decision to follow certain arbitration awards and not others, based upon those awards' factual and legal differences, does not authorize us to vacate his award under Trailways.


The Court acknowledged that on a second issue, i.e. what constituted an employee performing higher level work, the Arbitrator had not explained his decision not to follow an earlier award under the same contract. While finding that the Arbitrator "should have" explained his departure from the earlier award, his failure to do so did not compel a conclusion that his award should be set aside.

  Finally, the Court rejected the Company's contention that the doctrine of functus officio preluded the Arbitrator from retaining jurisdiction on the remedial issues, finding that while the award determined the Company's liability, it was not a final award triggering application of the doctrine.

Tuesday, June 16, 2015

June Update: Police suspensions, striker misconduct, a spitting teacher and a question of notice


Arbitrator reverses suspensions of police officers involved in fatal chase

Arbitrator Dennis Minni has sustained grievances filed on behalf of four Cleveland police officers.  The four grievants were supervising officers and were disciplined for alleged offenses including failing to request permission before joining the chase, leaving subordinates unsupervised, and failing to monitor the automatic vehicle locator ("AVL"). Initially, Arbitrator Minni explained that he believed the appropriate standard of proof was that of clear and convincing evidence. He noted his belief that most arbitrators utilized this standard in disciplinary cases because of the employer's control of the workplace and equipment and access to employees. Requiring this level of proof, in his opinion, "levels the playing field and helps insure that workplace due process occurs." Concluding that the City failed to meet this burden he sustained the grievances, noting also that he could not "escape a fairly pervasive feeling that these disciplinary decisions were designed to play to a different audience rather than correct and rehabilitate in the labor-management sense."

 Cleveland.com reports on the case and links to Arbitrator Minni's award here.

NLRB ALJ refuses to defer to arbitrator's award,  finds picketer's racially charged statements protected

 Administrative Law Judge Thomas Randazzo concluded that Cooper Tire violated the National Labor Relations Act when it terminated the employment of a locked out employee for racial remarks directed to a replacement employee crossing the Union's picket line. The termination was submitted to arbitration, and Arbitrator Roger C. Williams upheld the termination. The Arbitrator found that grievant's conduct violated the explicit terms of Cooper's harassment policy and that the use of racial slurs on the picket line increased the possibility that the constant verbal exchanges would escalate into violence. Applying the Board's traditional standards (i.e. before those were modified in Babcock & Wilcox Construction Company), the ALJ found the Arbitrator's decision "clearly repugnant" to the Act and therefore refused to defer to the Arbitrator's award.
 
The ALJ's decision is available here.

Arbitrator upholds tenure charges against teacher accused of spitting at student

Arbitrator Tia Schneider Denenberg has upheld the dismissal of a tenured teacher, finding he spit at a student who had walked out of his classroom following a verbal altercation. While noting that the teacher appeared capable, with multi-lingual skills and good performance reports, "by responding intemperately to an aggressive student in defiance of a clear caution, he gave the district grounds for doubting his self-control." Accordingly she concluded that the district had shown cause for removing the teacher from his tenured position.

Arbitrator Denenberg's award can be found here.

Connecticut Supreme Court upholds arbitrator's award finding just cause for dismissal of family services worker

Grievant was employed as a social worker with the Connecticut Department of Children and Families.  She became the foster parent of a child who had been returned to the Department by another foster family. According to the grievant, the child fell from a bed. The child was taken to the hospital but was pronounced dead. Grievant was criminally charged with manslaughter and risk of injury to a child, and her employment with the Department was terminated. She was acquitted of the criminal charges, and the employment termination was submitted to an arbitrator for decision. The arbitrator concluded that in light of  the medical examiner's finding that the physical injuries on the child were not consistent with death from a fall, but rather from shaken baby syndrome, the Department had not carried its burden of establishing that grievant had committed the fatal abuse of which she was accused. However, the Arbitrator found that grievant's own explanation of the incident established that she had been negligent and the child's fall could have been the "last straw" for earlier traumatic injuries. The Arbitrator concluded that grievant's "moment of negligence" had unusually serious consequences and that the totality of circumstances made her unemployable by the government entity responsible for the care and welfare of children.
The Union sought to set aside the award, and the Superior Court agreed, finding that "The arbitrator exceeded her authority in using negligence as a standard and basis for her award. The charge of negligence was never made by the department at the [Loudermill] hearing or in the termination letter...." On the Department's appeal, the Appellate Court reversed, finding that grievant was adequately notified of the conduct in issue, even if the term negligence was not used. The Connecticut Supreme Court had now affirmed that decision, rejecting the Union's claim that grievant had not been properly notified of the charges against her. The Court held:


[Grievant] was clearly informed that the arbitrator would consider whether her conduct on the night of May 19, 2008, constituted just cause for termination. 
***
Although [Grievant] did not concede that she had been negligent, this was a legal conclusion that the arbitrator was free to draw from her testimony, one that is not subject to review by this court. Therefore,  [Grievant] was provided with sufficient notice to satisfy her right to due process and the notice provision of the collective bargaining agreement. 

 The Court's decision can be found here. The opinion of Justice Eveleigh dissenting on the due process issue can be found here.

Sunday, May 31, 2015

Arbitrator rejects grievance but imposes a remedy - Union succeeds in vacating award

The cba between North Memorial Health Care and The Minnesota Nurses Association provides that an employee with thirty years service cannot be required to work weekends unless compliance would "deprive patients of needed nursing service." When grievant reached her thirty year mark she requested to be exempt from weekend work. Her request was denied, however, because the institution deemed the request inconsistent with necessary patient care. The Union grieved the denial, and the dispute was submitted to Arbitrator Richard John Miller.

Arbitrator Miller denied the grievance, finding that the contract expressly allowed the institution to invoke a patient care exception. He noted, however, that it would be arbitrary  and discriminatory to allow the Medical Center to deny grievant the opportunity to decline weekend work while allowing other, similarly situated employees, to do so. Accordingly he ordered that "if [North Memorial] invokes the 'exception' proviso to compel qualifying nurses to work on weekends the number of required weekends shall be equally shared (divided) among those qualifying nurses. . . ."

 MNA moved to vacate the award. The Union claimed that the Arbitrator had exceeded his authority by deciding an issue not submitted to him, and by effectively nullifying other provisions of the cba which prohibited a change in a nurse's written work schedule without the employee's consent.

The District Court agreed with both claims. It determined first  that:

The record reflects that neither party expressly asked the arbitrator to devise a remedy in the event he found a violation of the CBA. Of course, it may be implied that the parties agreed a remedy should issue if a violation occurred, as MNA suggested various scenarios in which it believed North Memorial could meet patient care needs while still offering the no weekend work benefit to Drake. ... Here, however, Miller found no violation but nonetheless imposed additional obligations on the parties. ... There is no indication that the parties intended Miller to issue a remedy without first finding a violation on the part of North Memorial. Indeed, Miller's own issue statement premised fashioning an appropriate remedy on first finding a CBA violation. .... Because Miller strayed beyond the issues submitted to him, vacatur is warranted.

The Court also agreed that by requiring North Memorial to divide weekend shifts equally among nurses who qualify for the no weekend benefit the award nullified other articles of the cba. The Court found this to be an independent basis for setting aside the award. 

The Court's decision in Minnesota Nurses Association v. North Memorial Health Care and North Memorial Medical Center can be found here.

Update: The Eight Circuit has affirmed the District Court's decision here.

Sunday, May 17, 2015

Rhode Island Supreme Court finds arbitrator improperly ignored management-rights clause

Grievant was an officer for the Rhode Island Department of Corrections. The Department received information that two officers were smoking marijuana in a department vehicle while on duty. An investigation uncovered that one officer had in fact been smoking marijuana in the vehicle, and the second, the grievant, had been in the vehicle but had failed to report the incident. Grievant repeatedly denied seeing the other officer smoking until he was advised that of the existence of a witness, at which time he admitted that the other officer had been smoking marijuana on duty.  Grievant's employment was terminated for failing to report that the officer was smoking marijuana on duty and for dishonesty during the investigation.

 The dispute was pursued to arbitration and an arbitrator converted the termination to a 60 day suspension. In doing so the arbitrator noted that the cba did not contain a schedule of offenses and related discipline and he relied instead on evidence submitted concerning a prior incident of claimed dishonesty which resulted in a suspension. The arbitrator observed:

[i]f, over an extended period of time, management has responded to a particular type of offense with a range or band of discipline based on the individual circumstances and severity of a case, an arbitrator would be hard[-]pressed to go outside that defined spectrum of penalties unless the offense itself is significantly outside said spectrum.


The Department sought review of the decision, and the Superior Court vacated the award finding that the decision was based on a "manifest disregard" of the cba.  It concluded that the arbitrator had "exceeded his authority and reached an irrational result" when he ignored the management rights provision of the cba.

The Union appealed to the Rhode Island Supreme Court, which has now affirmed the lower court's decision.  The Supreme Court determined:

Here, the arbitrator did not resolve the dispute based on any provisions in the CBA. In fact, the arbitrator decided—improperly we conclude—that, because the CBA did not list offenses and corresponding penalties, he would not rely on the CBA in making his decision and instead would "look elsewhere for guidance on this question" to reach this result. Not only is the CBA pertinent to the determination of just cause in this case, the arbitrator's failure to consider its terms was a manifest disregard of the contract.

The Management Rights section of the CBA, specifically section 4.1A., provides that
"the employer shall have the exclusive right, subject to the provisions of this [CBA] and consistent with applicable laws and regulations: * * * To hire, promote, transfer, assign, and retain employees in positions within the bargaining unit, and to suspend, demote, discharge or take other disciplinary action against such employees[.]" (Emphasis added.)

The arbitrator wholly overlooked this section of the CBA in his decision.

 The Court rejected the Union's argument that the lower court had incorrectly found that the management rights clause superseded the just cause provision, observing:

 ...we do not agree with this characterization of the trial justice's determination. The trial justice concluded that the arbitrator exceeded his authority when he manifestly disregarded the management-rights provision of the CBA, not that the management-rights provision trumped the just-cause provision. We agree with her conclusion.

 Two justices "respectfully, but nonetheless forcefully," dissented. They believed that the majority was improperly substituting its judgment for that of the arbitrator and that the award was well within the arbitrator's authority to decide whether there was just cause for the discipline.

The Court's opinion in State of Rhode Island Department of Corrections v. Rhode Island Brotherhood of Corrections Officers can be found here.

Sunday, May 10, 2015

Quick Hits - Law Enforcement

Officer's growing large amount of marijuana doesn't justify immediate dismissal

Grievant was employed as a police officer for the City of Buffalo. He was the subject of criminal and internal affairs investigations which revealed that he was growing large amounts of marijuana in a warehouse. He had visited the area of the warehouse on several occasions in his police vehicle. When confronted with the results of the investigations, the officer acknowledged that he had been participating in the marijuana grow operation since before he joined the Department. The Police Commissioner summarily terminated his employment. The Buffalo PBA pursued a grievance claiming that the City had failed to provide grievant with the contractual right to an informal conference and a formal hearing before terminating his employment. Arbitrator Jeffrey Selchick sustained the grievance, noting "the [contract] language brooks no exception based on the Commissioner's perception, no matter how reasonable and well founded, that the evidence of an officer's wrongdoing is overwhelming and termination is fully justified." The Arbitrator ordered the City to pay grievant for lost pay until the date of his guilty plea, less a thirty day unpaid suspension the City would have been contractually able to impose while it investigated.

 WIVB.com reports on the case, City to pay nearly $220k to dirty cop behind bars, and links to Arbitrator Selchick's award here.

Public policy requires a determination of likelihood grievant will re-offend before reinstatement award can be upheld

An earlier post, Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations, noted an award reinstating a police officer who had been accused of using excessive force and of being less than candid with the Department. Although finding both of these allegations supported by the evidence, the Arbitrator found the delay in the Department's investigation and the failure of superior officers with knowledge of the incident to take timely action weighed against termination. Accordingly he ordered the grievant's reinstatement without back pay. The City sought to vacate the award, and the Circuit Court for Cook County granted the City's request, finding the award contrary to public policy. The Union appealed, and the Illinois Appellate Court has now reversed that decision and sent the dispute back to the arbitrator for him to make a specific finding on the likelihood that grievant would engage in similar conduct if reinstated. Clarification of the award is necessary, according to the Court, to allow it to "fully assess [the award's] public policy implications." The Court's opinion can be found here.

Sheriff's Deputy leaving official vehicle in the dark on side of highway and making false statement during investigation just cause for dismissal

Arbitrator James R. Cox has upheld the termination of a Sheriff's Deputy for parking his official vehicle at least partly in the traffic lanes, turning the lights off and then "intentionally making false and inaccurate reports of the circumstances to investigating officers." Pantagraph.com reports on the case, Ex-deputy's firing upheld by arbitrator, and links to the award of Arbitrator Cox here.

Dismissal of officer for discharging weapon while off duty upheld

The Connecticut State Board of Mediation and Arbitration has denied a grievance filed on behalf of a New Haven officer. Grievant was one of three off duty officers at a restaurant when the New Haven PD received a report of shots being fired in the area. Several spent shell were found in the area and it was determined that 5 of the 6 shells had come from grievant's weapon. The Union maintained that the evidence was insufficient to support a termination, or, alternatively, that lenience should be shown and a lengthy suspension be imposed. The panel unanimously rejected these positions noting "This incident was not a minor issue such as firing off a firearm in the woods by teenagers. This was an incident where a mature police officer fired off at least five rounds in the middle of a congested city where someone could have been wounded or killed by an off duty police officer sworn to uphold the law against such activity."

The panel's decision can be found here