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.

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