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." 

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