Sunday, December 27, 2015

Moral turpitude, just cause and an arbitrator's authority

The New Hampshire Supreme Court has affirmed a lower court's decision vacating an arbitrator's award overturning the termination of a University professor (the grievant).

The professor had intentionally lowered the evaluation students had given lecturer at the University of New Hampshire. He erased markings on the evaluations and entered different (and lower) ratings. The University concluded that this conduct amounted to an act of "moral turpitude" within the meaning of the cba and terminated his employment.

The cba defined just cause as "encompass[ing] professional incompetence, deliberate neglect of duty or moral turpitude." The cba further provided that "[i]f charges involving moral turpitude are sustained, the bargaining unit member may be terminated immediately and the bargaining unit member shall not be entitled to receive further pay or benefits.

The dispute was grieved, and Arbitrator Gary Altman overturned the termination. (Arbitrator overturns decision to fire UNH professor). Arbitrator Altman concluded that grievant had engaged in an act of moral turpitude, but nevertheless, because of several mitigating factors, found the termination did not comport with principles of just cause. H remanded the matter to the parties to negotiate an appropriate level of discipline.

The University sought to set aside the award as in excess of the Arbitrator's authority, and the superior court agreed, vacating the award.(UNH professor dismissed from job). The Union appealed, and the NH Supreme Court has now affirmed that decision. 

The Court concluded that:

  ... having found that [grievant] engaged in conduct constituting “moral turpitude” within the meaning of Article 14.2.1, “the arbitrator was barred from further inquiry because such additional probing constituted ignoring the plain language of the contract.” Poland Spring Corp., 314 F.3d at 34 (quotations and brackets omitted). “[O]nce an arbitrator finds that an employee has committed an act specifically listed in the collective bargaining agreement as providing just cause for termination, the arbitrator is not free to fashion a separate remedy apart from the one provided by the parties’ agreement.” Id. “If the parties intended mitigating circumstances to affect whether [moral turpitude] constitutes just cause for termination, then they would have expressed their intent in the contract.” Id. at 35. Because the arbitrator found that [grievant]  engaged in “moral turpitude” and that finding is not challenged on appeal, his decision to overturn UNH’s decision to terminate [grievant's] employment “due to mitigating circumstances impermissibly substituted his own notions of industrial justice over those established by the contract.” Id. 

The Court rejected the Union's argument that because the cba provides that a bargaining unit member "may" be terminated it did not preclude that Arbitrator from fashioning a remedy in accord with general just cause standards. The Court found that the cba expressly enumerated moral turpitude as a proper basis for discharge and that the arbitrator exceeded his authority by overturning that decision. 

The Court's decision (University Systems of New Hampshire Board of Trustees v. Dorfsman) can be found here. Two earlier post address court decisions finding that arbitrators did not exceed their authority in rejecting termination where the cba provided that certain conduct was "subject to discharge" or "subject to termination." See "Subject to discharge" and progressive discipline and "subject to termination" does not equal automatic termination.

Sunday, December 20, 2015

Arbitrator upholds discipline of E-911 dispatcher for delayed dispatch

Grievant was employed for eighteen years with the County of Onondaga's Department of Emergency Communications. On the morning of November 29, 2012 she was working as a fire dispatcher. After receiving a report from the 911 call taker about an individual reporting trouble breathing, grievant appropriately dispatched a rescue unit. Approximately 22 seconds later the caller reported that he smelled smoke. The call taker coded the report as a residential fire and the information was transmitted to grievant. Contrary to protocol, Grievant did not dispatch fire equipment but sent another dispatcher to check with the call taker. There were several more reports which, according to the County, should have resulted in grievant dispatching fire equipment, but grievant failed to do so until approximately five minutes after the initial call.

The County issued a written reprimand, alleging several violations of County work rules, including a failure to follow job instructions, failure to transmit pertinent information in a timely manner and failure to update events as needed.

Rejecting the grievance challenging the warning Arbitrator Gordon Mayo noted:

Firefighting is not an exact science, and each structure fire poses its own problems in fire suppression. Nonetheless, this five minute delay in proper dispatching may have contributed to the caller's demise, as he did not survive the fire. 

The Arbitrator rejected grievant's claim of confusion, and her reliance on a claimed "five minute rule." Upholding the reprimand he concluded:

Mistakes happen in the workplace. Except in extraordinary circumstances, such errors do not result in death. An E-911 Center is different - there life and death outcomes depend upon the dedicated employees who staff these facilities. [Grievant] has been by all accounts a fine employee over her eighteen year career. Here, however, her failure to act in accordance with normal protocols may have contributed to a man's death. As a result, the penalty of a written reprimand is an appropriate punishment. 

Arbitrator Mayo's award can be found here.