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.