"Subject to discharge" and progressive discipline

An earlier post ("subject to termination" does not equal automatic termination) noted 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. 

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.

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.

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