Sunday, March 29, 2015

Award of back pay to firefighter who let certification lapse doesn't violate public policy

Grievant was employed as a firefighter by the City of Akron. His employment was terminated because of his failure to comply with the City Charter which required him to reside in the City. After grievant's termination, the Ohio Supreme Court upheld a State statute effectively abolishing residency requirements for municipal employees. The challenge to the statute ultimately upheld by the Supreme Court was being actively pursued at the time of grievant's termination.

Following the Court's decision, the City offered to reinstate grievant without back pay, an offer grievant and his union refused. The grievance was presented to an arbitrator in two stages. In the first the Arbitrator concluded that the termination was without just cause and ordered that grievant be reinstated and made whole for lost earnings. In a second hearing the Arbitrator determined the amount of back pay due was $251,421.01. The arbitrator concluded that had grievant provided better proof and documentation he was undoubtedly entitled to more.

The City filed an action to modify or vacate the back pay award. It challenged the award (unsuccessfully) on several grounds. One of the bases for the City's challenge was its claim that the award violated public policy. This public policy argument was premised on the City's claim that grievant had let his firefighter certification lapse for some period following his termination. The lower court, and now the Court of Appeals of Ohio, rebuffed this effort. The Court of Appeals noted:

In support of its position that the trial court should have vacated the back pay award on public policy grounds, the City directs our attention to various sources that require firefighters and EMTs to maintain certification as a condition of employment. The problem with this position is that the award at issue did not require the City to reinstate [Grievant] despite his lack of certification. Instead, the arbitrator awarded [Grievant] back pay for the period during which he had determined that the City had wrongfully terminated his employment. It is true that [Grievant] allowed his certification to lapse during a portion of this timeframe. This Court must emphasize two things, however. First, there is no documented and well-defined public policy that prohibits the payment of back pay to a wrongfully terminated firefighter whose certification lapsed during his unemployment. Second, and of equal significance in the context of this case, is the fact that the City cannot use the cloak of public policy to seek a review of the merits of the arbitration award. In determining whether an award should be vacated on public policy grounds, the inquiry is focused on the face of the award, and "[a] court is not authorized to revisit or question the fact-finding or the reasoning which produced the award."

The Court noted that testimony about grievant's duty to mitigate his damages and the circumstances under which he had let his certification expire had been presented to the arbitrator. The arbitrator, however, viewing the circumstances together with the "questionable legality" of the City's actions, determined back pay was warranted. 

In a decision here the Court affirmed the judgment of the lower court enforcing the award. 

Sunday, March 22, 2015

Fired, reinstated then fired again - court rejects effort to enforce Arbitrator's award

Two police officers employed by the Washington Metropolitan Area Transit Authority were dismissed for separate incidents One was alleged to have stricken a passenger with a baton and to have been untruthful during an investigation of the incident. The second was alleged to have had a physical altercation with a companion and with having made making false statements about it. The FOP grieved and arbitrated both cases, and the Board of Arbitration reinstated both officers with a lengthy suspension rather than termination. Pursuant to the provisions of Maryland law, both individuals were required to be recertified by the Maryland Police Training Commission. Both officers were placed on paid administrative leave while their request for recertification was pending. The Chief of the Metro Transit PD wrote the Commission, expressing his position "in no uncertain terms" that he did not favor recertification. The Commission subsequently refused to recertify the two officers and their employment was again terminated, this time because they were unsuccessful in recertification.

The Union grieved the terminations but did not pursue the disputes to arbitration. Instead, it brought an action seeking to enforce the Board of Arbitration awards, claiming that the Department had failed to comply with them. The US District Court, in opinions here and here, granted the Union's request and confirmed the awards. The Court concluded that the Chief's letters "sought the very condition, lack of certification, that forms the basis for its argument that it cannot comply with the arbitral awards and reinstate the two officers." The Court also noted that the Chief's repeated references in the letters to the termination of the two officers for just cause "sharply conflict with the conclusions of the Board, which found that neither ... had been terminated for just cause."

The Fourth Circuit has now reversed. Relying in part on decisions of the Seventh and Third Circuits, the Court concluded:

Like the employers in Chrysler Motors and United Food, WMATA relied on independent grounds that were never before the arbitrators when they terminated [the] Officers ... for a second time. The Maryland Commission's denial of the Officers' request for recertification created a new and independent basis for deciding that [they] could no longer serve as MTPD officers. Firing a police officer for a disciplinary infraction is distinct from firing an officer for failing to obtain recertification. And as in Chrysler Motors and United Food, the basis for the second termination was never before the arbitrators. Nothing in the record suggests that the Board of Arbitration considered, or was even aware of the possibility, that the Maryland Commission would deny recertification. We therefore hold that WMATA's decision to terminate the Officers for a second time, following the Maryland Commission's denial of recertification, did not violate the earlier arbitration awards

The Court noted that it was not concluding that the second terminations were for just cause. That decision, it noted, was properly one for an arbitrator to make. It held only that the evidence failed to establish that WMATA's actions "exceeded the bounds of permissible behavior under the arbitration awards."

The opinion of the Fourth Circuit can be found here.

Sunday, March 15, 2015

Court: Arbitrator improperly decided what the contract should say, not what it does say. Award vacated.

A police officer represented by Fort Pitt Lodge 1 of the FOP filed a grievance concerning his compensation for working certain special events. The cba between the Union and the City of Pittsburgh contained a provision concerning "Secondary Employment." This secondary employment consisted of off-duty employees performing safety, peacekeeping or traffic control at large scale events such as concerts or sporting events. The cba provided that no employee would be compelled to perform such employment but that the compensation for employees engaged in such employment would be "the rate of pay ... as agreed upon by and between the City and the Secondary Employer." The City's agreed upon rate of pay was the overtime rate for a fourth year police officer ($42.12 per hour) regardless of the officer's rank or seniority.

Grievant was assigned, as part of his regular on duty shift to direct traffic at a sporting event. Also working at that event for a secondary employer was an off duty officer. Grievant claimed he should have received the higher secondary employment rate of pay. Grievant and another officer filed similar grievances for other instances where both an on duty officer and an off duty officer were working the same event. The grievances did not challenge the right of the Department to assign an officer to the event, but sought to have all employees, both off and on duty, paid the secondary employment rate.

Arbitrator Phillip Parkinson sustained the grievance. He concluded:

[I]t would appear to be inequitable for an on-duty officer to be called to supplement the secondary off-duty officers for an event such as a large concert or an event, for example, at the Consol Energy Center but be paid at a lesser rate of pay.... This raises a valid and legitimate pay concern for an on-duty officer.... It does not appear justifiable for these on-duty officers doing the same work at the same event as the secondary officers yet receiving a lesser rate of pay. Therefore, it is my conclusion, based upon the grievances and the arguments presented, that on-duty officers sent to work special events should be paid at the same rate of pay as the rate being paid to officers working the special events as a secondary employment detail.

The City sought to vacate the award, claiming that the Arbitrator exceeded his authority, that his award unduly infringed on a managerial prerogative of the City and that it mandated the City to carry out an "illegal" act. 

The Common Pleas Court (in a decision that can be found here) upheld the City's appeal and vacated the award. The Court concluded that the arbitrator had in fact exceeded his authority, observing "...the material facts are utterly undisputed and the arbitrator did not interpret the collective bargaining agreement but, rather, explicitly disregarded its clear terms." He also found that the award improperly infringed on the City's managerial prerogative to negotiate the terms and conditions of compensation of on duty officers. He noted:

The arbitrator's award in no respect suggests that the collective bargaining agreement is unclear with regard to the amount of compensation owed to on-duty officers who are reassigned to special events at which off-duty secondarily employed officers will be performing similar or identical work, but rather the arbitrator simply observes that such an arrangement "appear[s] to be inequitable." This plainly constitutes a finding, not that the arbitrator believes that the collective bargaining agreement actually provides for a higher compensation rate for on-duty officers reassigned to special events, but rather that the collective bargaining agreement should provide a higher rate of compensation for on-duty officers reassigned to special events. 

On the Union's appeal, the Commonwealth Court has now affirmed. Applying reasoning substantially similar to that of the lower court, the Commonwealth Court determined:

The purpose of grievance arbitration is to resolve disputes over a provision of an existing contract. The arbitrator explained his award on the grounds that it would be "inequitable" not to give on-duty officers the same wage paid to an off-duty officer. An Act 111 grievance arbitrator does not have jurisdiction or authority to rely on principles of equity to reform the CBA.
Instead of acting solely as a grievance arbitrator, the arbitrator stepped into the shoes of an interest arbitrator by issuing an award applicable to all police officers in the bargaining unit, not just the grievants. The arbitrator decided, apparently, what the CBA should say and did not rely upon what it does say. This he lacked power to do.

 The opinion of the Commonwealth Court can be found here.

Sunday, March 8, 2015

Police Department discipline in Cleveland-20 arbitration awards

Northeast Ohio Media Group recently published an article discussing the Mayor of Cleveland's belief that the arbitration process for police discipline has impeded his ability to terminate problem officers. Cleveland Mayor Frank Jackson says arbitration process keeps bad cops on police force.  As part of its reporting on this issue, Northeast Media Group requested, and received, 20 arbitration awards addressing discipline of police department employees. The report links to the awards. Among the issues discussed by the arbitrators are:

The dismissal of two officers for their involvement in an off duty bar fight with racial overturns. One of the dismissals was overturned here, while the second was upheld here. Both awards are by Arbitrator Michael Paolucci.

The suspension of a Sergeant for her involvement in establishing and managing a "homicide pool" in which participants bet on the number of homicides that would be committed in the city in a year. Arbitrator Burt Griffin's upheld the suspension.

The termination of a detective for, inter alia, texting/sexting crime victims and having personal visits while on duty without authorization. Arbitrator Gary W. Spring awarded the detective reinstatement without backpay and subject to a fitness for duty exam prior to his return to duty.

The suspension of an officer for insubordination in failing to follow an order concerning vacation scheduling. Arbitrator Alan Miles Ruben denied the grievance.

An officer's use of pepper spray to effectuate an arrest. Arbitrator James Mancini reduced  a suspension to a verbal warning.

The dismissal of an officer who had entered a no contest plea to an assault charge arising from her stabbing of her boyfriend. Arbitrator Paul Gerhart awarded reinstatement without back pay.

The suspension of an officer because of comments made in an on line post to the Cleveland Plain Dealer. Arbitrator Hyman Cohen reduced the discipline and, in a portion of the award captioned "Dictum" rejected claims that the discipline violated the officer's first amendment rights and that the officer had been engaged in protected concerted activity.

Sunday, March 1, 2015

Adrian Peterson, arbitration and the law of the shop

The decision of Judge David Doty in the NFLPA's challenge to the award in the Adrian Peterson case has been the subject of considerable press. Despite earlier predictions about the difficulty of overturning arbitration awards, Judge Doty has vacated the award on two distinct grounds. NFL Players Association v. NFL and NFL Management Council

Peterson had been suspended for his actions relating to what he claimed was the discipline of his child. The suspension was imposed pursuant the Commissioner's authority under the cba to discipline a player for "conduct detrimental to the integrity of, or public confidence in, the game."  Under the Standard Player Contract the Commissioner, upon a finding of such conduct, has " the right, but only after giving Player the opportunity for a hearing ... to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely; and/or to terminate this contract."

 After a dispute about the scheduling and scope of a hearing, and without hearing directly from Peterson, the Commissioner suspended him for the remainder of the season, fined him six weeks pay, inclusive of amounts forfeited during the suspension, and ordered him to participate in a counselling and treatment program.

Under the process contained in the cba, the NFLPA appealed the discipline to a hearing officer appointed by the Commissioner. The Union claimed that the Commissioner had improperly, and retroactively, imposed discipline on Peterson pursuant to a new policy issued after the adverse publicity concerning the discipline of Ray Rice. The Union maintained that under the policy in existence at the time of the incident in issue, the presumptive penalty was a two game suspension. The Union also claimed that Peterson had been deprived of a fair hearing, that the imposition of psychiatric counseling was not permissible under the cba, and that the Exempt List had improperly been used as a form of discipline. In support of its claim the Union relied, in part, on the decision of Judge Barbara Jones (here) in connection with the appeal of the discipline imposed on Ray Rice. The Union asserted that the Rice decision established that the new policy could not be applied retroactively and that this decision had become "the law of the shop."

After a hearing, the Hearing Officer rejected each of the Union's arguments. (The decision of Hearing Officer Harold Henderson can be found here). He concluded that the Commissioner had broad discretion to impose discipline under the cba and found the new policy consistent with the prior one. He acknowledged that the discipline imposed was greater than that imposed in previous cases under the prior policy but found that it involved "one of the most egregious cases of domestic violence in this Commissioner's tenure." He also rejected the claims that Peterson had been improperly denied a hearing and that the Commissioner had no authority to require counseling. Accordingly he denied the grievance and affirmed the discipline.

The NFLPA filed suit to vacate the award. The NFLPA's complaint can be found here. It maintained that the award violated "the essence of the cba," that Henderson exceeded his authority by deciding whether the discipline was permissible under the old policy, that the award was fundamentally unfair given the retroactive application of the new policy and that Henderson was an evidently partial arbitrator.

While recognizing the substantial deference ordinarily given by courts to arbitrator's awards, Judge Doty noted that "Arbitration awards ... are not inviolate, and the court need not merely rubber stamp the arbitrator's interpretations and decisions." He explained:

Although the court may not vacate an award if the arbitrator was “arguably construing or applying the CBA,” vacatur is proper when the award “fails to draw its essence from the CBA or is contrary to the plain language of the [CBA].” Bureau of Engraving, Inc. v. Graphic Commc’ns Int’l Union, Local 1B, 164 F.3d 427, 429 (8th Cir. 1999). “The essence of the CBA is derived not only from its express provisions, but also from the industrial common law.” Id. The industrial common law includes “past practices of the industry and the shop,” i.e., the law of the shop, and “the parties’ negotiating history and other extrinsic evidence of intent.” Id.; see also United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960) (“The labor arbitrator’s source of law is not confined to the express provisions of the contract, as the industrial common law - the practices of the industry and the shop - is equally a part of the collective bargaining agreement although not expressed in it.”) The law of the shop necessarily includes prior arbitration awards. See Warrior & Gulf, 363 U.S. at 581 (“The processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement.”).

 Judge Doty agreed with the NFLPA that, in this case, Henderson's award failed to draw its essence from the cba. He found that "in the Rice decision, the hearing officer unequivocally recognized that the New Policy cannot be applied retroactively." He rejected Henderson's efforts to distinguish the Rice decision as one involving double punishment and observed that Henderson had not explained why the "well recognized bar against retroactivity" did not apply to Peterson. The Judge concluded:

Even leaving the Rice decision aside, it is not seriously contested that the Commissioner understood he was constrained to apply the New Policy prospectively.... United Transp. Union, Local Lodge No. 31, 434 F2d 220, 222 (8th Cir. 1970) (recognizing that the law of the shop includes the understanding of the parties). Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA. As a result, the arbitration award fails to draw its essence from the CBA and vacatur is warranted. See Trailways Lines, Inc. v. Trailways, Inc. Joint Council, 807 F.2d 1416, 1423 (8th Cir. 1986) (finding that failure to consider the law of the shop can be the sole basis to vacate an arbitration award).

The Judge also concluded that Henderson exceeded his authority by adjudicating the "hypothetical question" of whether Peterson's discipline could be sustained under the earlier policy. He determined that the NFLPA had not submitted that issue to the hearing officer, but only "the pure legal issue" of whether the New Policy could be applied retroactively." Finding that Henderson had "strayed" beyond the issues submitted by the NFLPA the Judge concluded that vacatur was warranted on that basis as well.

In light of these two conclusions, Judge Doty found it unnecessary to decide whether Henderson was evidently partial or whether the award violated fundamental fairness. He granted the petition to vacate the award and remanded the case "for such further proceedings consistent with this order as the CBA may permit."

The NFL has issued a statement, here, expressing its disagreement with the decision and its intent to appeal.

Update: The Eight Circuit has reversed the decision of the District Court and remanded with direction to dismiss the petition to vacate. The Court's opinion can be found here. The Court's opinion is discussed at Eighth Circuit on the law of the shop and the scope of the issue to be decided