Sunday, November 6, 2016

Law enforcement officers pointing weapons at co-workers - two terminations upheld

Two recent arbitration awards address discipline imposed on law enforcement employees alleged to have pointed loaded weapons at other employees.

In State of Ohio Department of Rehabilitation and Correction Arbitrator Howard Silver upheld the termination of a Corrections Officer who was found to have pointed a loaded shotgun at another corrections officer.

 Grievant alleged that the other officer, on several occasions, including shortly before the incident in issue, had shouted "whore, whore whore" at grievant while both were working at the Lebanon Correctional Institution. On August 21, 2015, grievant was on her way to the bathroom. Pursuant to her usual practice she was carrying her weapons, both the shotgun and a handgun. She came upon  the other officer and a third corrections officer. While there was some dispute as to precisely what took place, grievant testified that she twice asked the other officer  "Do you have something you want [or need] to say to me?" The officers testified that while asking this question grievant pointed the shotgun at the officer alleged to have made the "whore" statements. The third officer attempted to place himself between the two but grievant gave "stern" instructions for him to step aside.  Grievant was dismissed as a result of this conduct.

The arbitrator found no evidence that the other office had made the taunts alleged, but even if she had  the grievant's actions were unwarranted. He noted:

Even if [Grievant] had suffered taunts from a co-worker, such misbehavior would not justify the threatened use of deadly force. The allegations of wrongdoing made by [Grievant]  ... are not supported by a preponderance of the evidence in the hearing record and these allegations ... have not been substantiated.
Without proof of the misconduct alleged by the grievant ... the question repeatedly put to Officer Kelly by [Grievant] about whether Officer Kelly had something to say to [Grievant] remains unexplained. It may be that [Grievant] believed that this harassment had occurred when in fact it had not occurred, or it may be that the harassment occurred and it has not been proven to have occurred. In either event, the threat of deadly force against a co-worker remains unjustified and is found to be egregious misconduct, opening a person who engages in such threatening behavior to a severe disciplinary response based on the seriousness of the misconduct and the serious physical harm such misconduct threatens. 

Because he found grievant's conduct " so dangerous, so reckless, so coercive and intimidating" Arbitrator Silver denied the grievance and found just cause for the termination notwithstanding grievant's nineteen year discipline free history.

In County of Faribault and Law Enforcement Labor Services, Inc., Arbitrator Stephen Befort similarly denied a grievance and upheld the termination of a Deputy Sheriff. Grievant was alleged to have pointed his loaded service weapon at other deputies on six occasions. Grievant did not deny the conduct but claimed that there was no intent to threaten or harm the other deputies and that the conduct was engaged in in a playful or joking manner.

The arbitrator rejected this defense. He noted that the lack of ill will did not exempt the "serious and dangerous" misconduct from appropriate remedial sanction. He also rejected the Union's argument that a lack of progressive discipline undermined any claim of just cause for the termination.  He concluded: is well established that warnings and a pattern of increasing discipline are not required in instances of severe misconduct. An employee is presumed to know without warning or lesser discipline that severe misconduct is not permissible. ... Thus, an employer need not use progressive discipline when an employee commits serious misconduct such as theft or violence. The same is rue with respect to a law enforcement officer who points a loaded weapon at a co-worker.

The arbitrator concluded that despite what he found to be grievant's genuine remorse the department had "lost all trust" in his rehabilitation and that the County had established just cause for the termination.

Sunday, October 30, 2016

Social media, adverse publicity and just cause

The Clark County, Ohio Sheriff's office is responsible for County wide law enforcement and operates the county jail. The jail shares a building with the Springfield police department with a common lobby between the two. Grievant was one of two Sheriff's Office Sergeants on duty at the jail on May 13, 2015. On that evening a former deputy, who had been fired for alcohol related misconduct, entered the lobby. While there was some dispute about his initial condition he became increasingly inebriated as the evening progressed. The former deputy approached the window of the Sheriff's office and asked to speak with a Sergeant. One of the Sergeants on duty (not the grievant) responded. The former deputy claimed there was an incident down the street requiring attention, but could not provide any details. After being advised that there was nothing that could be done without additional information. Nevertheless the former deputy remained in the lobby, at one point lying next to the door. The responding Sergeant notified the Springfield police that the former deputy was in the lobby but instructed her deputies to leave him alone.

Approximately a half hour later an individual entered the lobby to turn himself in on an outstanding warrant. This individual recognized the former deputy from a prior jail stay and began videoing him on his phone. His recording showed the former deputy stumbling severely and urinating in the lobby. After the individual left then office he posted his recording on Facebook and contacted the local media to report what he had observed.

The following morning the Sheriff was faced with numerous media accounts of the incident and the Facebook posting and spent considerable time responding to media inquiries. He also asked the County prosecutor to conduct an investigation to determine if criminal charges against any Sheriff's Department employees were warranted.

After an investigation the prosecutor recommended the pursuit of misdemeanor charges against the  sergeant who first interacted with the former deputy and who directed the staff to leave him alone. The Sheriff decided not to pursue criminal charges but conducted an internal investigation. That investigation resulted in the termination of three sergeants, the responding sergeant, the grievant and a sergeant who came on duty while the former deputy was still in the lobby. All of the terminations were grieved. The termination of the responding sergeant was upheld (Termination upheld for fired Clark Co. sheriff’s sergeant). A hearing on the termination of the third sergeant has not yet been held. Arbitrator Tobie Braverman addressed the termination of the second.

Arbitrator Braverman concluded that the evidence supported a charge of conduct unbecoming, neglect of duty and unsatisfactory performance. She concluded that she should have, at a minimum, questioned the other Sergeant's decision to let the former depart remain in the lobby and should have called someone to check on the former deputy's mental state and possible need for assistance.  As to the penalty, however, Arbitrator Braverman concluded that termination was too severe. She addressed the impact of the negative publicity caused by the posting of the video to Facebook, but found this by itself insufficient to support termination. She observed:

Having determined that the Grievant committed the offense with which she is charged, the remaining question is that of whether the penalty meted out for her offense is appropriate in the circumstances present in this case. There can be no doubt that the decision to terminate the Grievant was influenced in significant part by the fact that video of the incident was posted on Facebook and covered by local media. This clearly reflected poorly on the Employer. It resulted in accusations of both favoritism, since [ ] was a former deputy, and indifference due to the lack of concern for his safety and that of the public. The publicity, however, cannot be the sole determinant in assessing the propriety of the discipline to be meted out to the Grievant. In this day and age when virtually everyone has a video camera in his pocket, it must be presumed that there is a real and present possibility that the events are being recorded and that those recordings will be posted to social media. While it is important that law enforcement personnel in particular be mindful of this fact, the mere fact of the additional attention cannot exclusively drive the penalty for misconduct.

In light of grievant's seventeen year discipline free history, and the principle of progressive discipline, the arbitrator ordered grievant's reinstatement without back pay. WDTN reports on the decision, and Arbitrator Braverman's award can be found here.

Sunday, October 23, 2016

Arbitrator's duty to disclose and evident partiality

The City of Mason, Ohio and the Mason Professional Firefighters Union were parties to a dispute about the termination of a bargaining unit employee. After the arbitrator initially selected disclosed a potential conflict of interest, the parties selected another arbitrator from a list provided by FMCS.  The parties selected arbitrator Howard Tolley. Following a hearing Arbitrator Holly upheld the Union's grievance and ordered the reinstatement of the grievant with back pay. He found that the City failed to conduct a fair, objective investigation and that it lacked substantial evidence of guilt. Together with his award, Arbitrator Tolley submitted an invoice. The signature block on the invoice identified him as the Executive Director of Unitarian Universalist Justice Ohio. The City maintained that this was the first time it became aware of the arbitrator's position with the organization which, according to its mission statement, "organized justice seekers statewide to promote  education, service, and advocacy consistent with Unitarian Universalist liberal religious principles and to witness with and on behalf of marginalized groups and individuals."

The City sought to set aside the award, arguing that the arbitrator had failed to disclose his employment with UUJO, that he was not qualified under the terms of the cba, and that it would not have selected him had it know of his position with the organization. The City claimed that these facts supported a claim of evident partiality, a basis to set aside the award. The magistrate hearing the City's motion denied the request to vacate, and the City's objections to that decision were overruled by the trial court.

On the City's appeal, the Court of Appeals of Ohio reversed.  Relying in part on what it described as the seminal case on the issue of undisclosed background information (Commonwealth Coatings Corp. v. Continental Das. Co.) the  Court held

Based on our review, we find the facts and circumstances in the present case depart from normal procedures of arbitration significantly enough to find evident partiality. The record in this case establishes that Tolley's involvement with UUJO is not indirect or trivial in the sense that he was an arms-length member of an organization supporting some social justice positions.

The record further supports the city's position that they were prejudiced by the nondisclosure of this information. While UUJO aligns itself with many issues and causes, the record before the court does indicate the support of a number of positions that would be unacceptable to a party representing the management side of an arbitration decision. [footnote omitted]

Accordingly the Court vacated the award.

The Court's decision in City of Mason v. Mason Professional Firefighters can be found here.

Sunday, October 16, 2016

"Union member-union" privilege, grievance time limits - two recent cases

Mass. SJC rejects union privilege

In Chadwick v. Duxbury Public Schools, the Massachusetts Supreme Judicial Court has rejected an effort to have the country recognize a "union member - union privilege,"  at least beyond the labor dispute setting. Plaintiff, a union represented teacher, and a former local union president, sued her employer alleging discrimination and retaliation. When the School sought discovery, plaintiff objected to several of the requests, asserting that any discussions or communications she may have had with her Union were covered by a union member - union privilege. The trial court rejected plaintiff's privilege claim. The SJC has now decided what it described as an issue of first impression, i.e.

whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. 

Affirming the lower court's decision, the SJC declined to create such a privilege. Initially it found that nothing in the statutory language granting public employees the right to bargain over wages, hours and terms and conditions of employment implied such a privilege in the context of a civil action not directly connected to the collective bargaining context. 

The Court also found no basis to create such a privilege as a matter of common law. Declining to adopt the reasoning of the Alaska Supreme Court in Petersen v. State (discussed herethe Court observed that the creation of such a privilege was best left to the legislature. 

Maine Supreme Court - Arbitrator improperly ignored time limits on grievance processing

The Maine Supreme Court in  State v. Maine State Employees Association, SEIU Local 1989 reversed a lower court ruling and concluded that an arbitrator had exceeded her authority by deciding a case appealed to arbitration beyond the deadline established by the cba. 

The applicable contract called for requests for arbitration to be submitted within 15 days of receipt of the Step 3 decision. Because of the absence of two employees who normally handled these appeals, the Union requested a "break" from the employer on enforcement of timelines.  The employer responded:

Of course we will work with you/MSEA while the Member Support Specialists are out. I will notify everyone in this office and the Department HR directors that we are waiving time requirements form[sic] 8/27 through 9/13.
Let's plan to pick up the timelines on Monday 9/16. We can touch base later if this needs to change.

The Step 3 decision in this case was received on August 29. The appeal to arbitration was submitted  on October 22, more than fifteen work days beyond September 16. 

The employer challenged the appeal as untimely, but the arbitrator concluded that the employers response was not "so exact or precise" as evidenced by its commitment to touch base later if needed, and that it would be unfair to the grievant to deny her a hearing based on the actions of a temporary employee unfamiliar with the process. The arbitrator then proceeded to the merits, reducing grievant's termination  to a written reprimand. 

The State sought to vacate the award, but the lower court refused. On the State's appeal, the Supreme Court concluded: 

By attributing to the State an agreement to waive deadlines beyond the date to which it in fact consented, and then enforcing a waiver that is necessarily deficient under the CBA, the arbitrator, in effect, re-wrote the terms of the CBA. Instead, under any "rational construction" of the CBA, ..., MSEA's Step 4 arbitration request on behalf of [grievant] cannot be viewed as timely. Because the arbitrator's contrary determination represents a "manifest disregard" of the CBA, the arbitrator exceeded her powers and—reasoning that it would be unacceptable" if [grievant] were denied an arbitration hearing under the circumstances presented here—imposed her "own individual concept of justice." 

The Court remanded the case for entry of a judgment vacating the award. 

The issue of timeliness in grievance processing is also discussed here and here.

Sunday, October 2, 2016

Officer involved shooting - Arbitrator orders "second chance" for dismissed officer

On March 7, 2013 El Paso police received a call about a domestic disturbance. The individual who was the subject of the call (Daniel S.) was no longer on the scene but witnesses reported that he had burned his mother's dogs, cut another one and threatened to kill his brother. A few hours later he was the subject of another call when he was reported to be violently menacing staff and customers at a local convenience store. Police arrived on the scene and transported his to a nearby hospital where he assaulted several staff and patients, and punched an El Paso police officer in the face. The officer fired five Taser cycles with little effect. Eventually he was subdued with the assistance of hospital personal. He was then transported to the police substation.

Grievant was coming on duty at the substation and volunteered to take the individual to the County Jail. According to grievant and others, Daniel S. had the physique of a professional body builder and appeared to be "on something." Grievant was assisted with the transport by a civilian employee of a contractor. This was pursuant to a new program designed to free police officers for other assignments. During the transport Daniel S. would cycle between periods of docility and combativeness. He would go limp, requiring Grievant and the contractor to carry him for significant distances. Upon the approach to the jail, Daniel S. deliberately smacked his head against the door causing a bloody wound. Because of the wound, jail personnel refused to accept him, requiring grievant to take the prisoner to another facility for treatment. The prisoner became combative again as they were exiting the jail. The departure was recorded on the jail's video, but the interpretation of the events was subject to dispute. What was undisputed was that the officer and the contractor struggled with the prisoner, with the officer ultimately pulling his weapon. While there was some uncertainty concerning whether the officer intended to shoot or whether his hand was struck causing an accidental discharge, the prisoner was fatally shot. An investigation ensued, and the officer's employment was ultimately terminated. The Notice of Termination contained two primary allegations. The first alleged that the officer had violated the Department's policy with respect to the use and application of deadly force, and the second alleged that he had misrepresented the facts concerning whether the shooting was accidental or intentional.

After a criminal investigation resulted in no charges being filed, the grievance proceeded to arbitration before Arbitrator Mark Sherman.

After a detailed review of the evidence, and the conflicting positions of the parties, Arbitrator Sherman ordered the grievant reinstated without back pay. While noting the severity of law enforcement's excessive use of force, and his own prior cases generally upholding termination where excessive use of force was involved, Arbitrator Sherman found several mitigating factors in this case.

Initially, the Arbitrator found that the City had not established that grievant intended to deceive. Rather, he concluded that any discrepancies in his account resulted from the initial shock of the incident and gradual but incomplete efforts to recall details. He also found that deficiencies in the investigation of the incident led to a disjointed effort to gather a complete statement from grievant.

Turning to the use of force issue, Arbitrator Sherman noted that a lack of coordination between the City, the Union and the District Attorney's office led to grievant's actions being portrayed "in the worst possible light by the media." He also found that the newly instituted policy of civilian transport of prisoner exacerbated the situation, noting:

[Grievant] was assigned to transport a violent and highly dangerous prisoner with only a 23-year-old, unarmed security guard to assist him. While his contracted “off -sider”certainly did his valiant best to assist [Grievant], the unarmed young man had never been through any police academy nor was he physically or mentally equipped to deal with the dangerous situation that confronted him on the day in question. For all intents and purposes, therefore, the Grievant was pretty much on his own in his effort to transport a powerful and seriously deranged hulk of a man.

Nevertheless, Arbitrator Sherman found that grievant was not without fault:

In the final analysis, there were a couple of key opportunities for the Grievant to seek help before things got out of hand while he was on his way out of the sally port. Ultimately, he should  have never put himself in the position where he had to draw his gun in an effort to intimidate Mr.S[...]. He should have never put himself in the position where he had to breach the Use of Force policy in a last desperate attempt to control the situation. But most critically, he should have never drawn his weapon in such close proximity to Mr. S[...], knowing intuitively and through training that an unexpected and violent movement could cause his gun to accidentally discharge. (After viewing the sally port video nearly 50 times the Arbitrator reached the firm conclusion that this is precisely what happened.) In summary, despite the fact he was let down by both the Department and the County Jail staff, he still bears the brunt of the responsibility for the accidental death of Mr. S[...].

Accordingly, Arbitrator Sherman concluded  that he would serve "his customary role of scapegoat and reviled 'decider' of the controversial, by choosing to give an officer a second chance." He ordered the City to reinstate grievant, without back pay, and subject to a fitness for duty exam and whatever additional training the Chief might require. 

Arbitrator Sherman's award can be found here.

Sunday, September 25, 2016

Quick Hits - Retiree health, Military leave, Teacher tenure, In the news

Honeywell not obligated to arbitrate termination of retiree health benefits

After Honeywell announced that it would terminate retired employees medical and prescription drug coverage, a group of retirees filed a multi-count complaint challenging that action. One of the counts sought to compel Honeywell to arbitrate their claim that the Company's action breached the applicable cba. The District Court for the Southern District of Ohio rejected this claim. It noted that the cba limited arbitration to disputes between the Company and the Union, not individual retirees. It also rejected plaintiffs claim that they were entitled to arbitrate the issue as third part beneficiaries to the contract, finding that to the extent that Plaintiffs are seeking to enforce promised made in  the CBA, they are bound by all of its terms, including the scope of the arbitration provisions. Fletcher et al v. Honeywell International, Inc.

Military leave, past practice and arbitrability

The Ohio Court of Appeals, reversing a lower court decision, found that an arbitrator did not exceed his authority when he concluded that the State breached its cba by unilaterally ceasing payment for travel and rest time related to military leave. The lower court found that the cba did not contain a definition of military leave and concluded that the arbitrator had exceeded his authority by independendly construing the term. The Court of Appeals, however, concluded that the arbitrator was authorized to interpreted that term as used in the cba in light of the past practice of the parties. State of Ohio v. Ohio Civil Service Employees Association, Local 11 AFSCME

Unsworn student statements, without testimony, insufficient to support teacher tenure charges

Arbitrator Edmund Gerber rejected teacher tenure charges accusing a teacher of improperly providing answers during a student assessment test. The Schools District's evidence consisted of the unsworn statements of 27 students, none of whom were called to testify. Arbitrator Gerber dismissed the charges at the conclusion of the School District's case, finding that this hearsay evidence was insufficient to support the charges. In the Matter of the tenure hearing of Michelle Gates, State-Operated School District of the City of Paterson

Labor Arbitration in the news 

Arbitrator rules Buffalo School Board can’t get rid of cosmetic surgery rider without negotiations

North Jersey teacher should be fired for bullying students, arbitrator rules

NALC: National-level arbitration case decided on ‘Work and Time Standards Video Recording’

Judge orders ex-cop's reinstatement

Arbitrator Rules Against Itasca County Sheriff's Department

Sunday, September 18, 2016

Eleventh Circuit: Presumption of interpretation versus modification of cba supports arbitrator's award-effort to vacate denied

Shaw Environmental was a government contractor on a military facility. The cba between Shaw and the Wiregrass Metal Trades Council called for the termination of an employee for "Possessing ... Government property without authorization."

A bargaining unit employee was dismissed after he gave a plasma cutter to an auto parts store in payment of a bill. The employee claimed that the equipment had been left with him for temporary storage by an individual who failed to retrieve it after several requests to do so. While there was some dispute about how the employee had acquired the plasma cutter his employment was terminated when it was established that the equipment was government property. The termination was grieved, and the dispute was submitted to Arbitrator Carol M. Hoffman for resolution.

Grievant claimed that he was not aware that the equipment was government property. Shaw maintained that proof of actual knowledge was irrelevant, that the offense occurred upon "possession" without authorization without regard to actual knowledge of ownership.

Arbitrator Hoffman sustained the grievance (here). She accepted grievant's testimony that he was not aware that the property in issue was government owned. She concluded:

...grievant's demeanor at the hearing evidenced an unawareness of the fact that the plasma cutter was stolen or that it was property belonging to the government at the time Justin Griffin brought it to grievant's home. Grievant cannot be said to have violated a policy prohibiting possession of government property when he did not know the property belonged to the government or that it had been stolen.

Separately, Arbitrator Hoffman faulted the Company for failing to conduct its own investigation, relying instead on the investigation performed by the military police.

Shaw sought to vacate the award. It claimed that the arbitrator had exceeded her authority by improperly adding a "knowledge" element to the offense. The District Court (here) agreed with Shaw and vacated the award. It found:

While the parties expressly bargained for an arbitrator to be given the authority to interpret and apply the CBA and ultimately issue final and binding determinations, they did so with the understanding that the arbitrator would not “change, alter, amend, modify” or add to the other provisions bargained for in the CBA. And as the Magistrate Judge properly recognized, “[i]t is an unobjectionable principle that an employer can bargain to have included in a collective bargaining agreement a provision to the effect that certain identified types of employee conduct always provide just cause for discharge.” ... Here, the CBA contained just such a provision, whereby both parties agreed that the “possessing, taking, removing, using, destroying, or tampering with Company or Government property without proper authority” would constitute just cause for termination. ... Wiregrass could have negotiated “knowingly” possessing into the contract, but did not. The arbitrator exceeded her authority by adding it to the CBA.

The Metal Trades Council appealed, and the Eleventh Circuit has now reversed (here), effectively confirming the award. The Court noted two principles defining the scope of an arbitrator's authority. The first is that the court must defer "entirely" to the arbitrator's interpretation of the contract, no matter how wrong it may believe that interpretation to be. The second is that an arbitrator may not ignore the plain language of the contract. The issue, therefore, is whether the arbitrator interpreted the contract or, instead, modified it by ignoring relevant language.

In this case, it was undisputed that the policy in issue was silent on the question of whether an employee must know that the property in question was government owned to be subject to termination. The parties disagreed, however, on the effect of that silence. The Court summarized the conflicting positions:

Shaw contends that the policy's silence renders it unambiguous and impervious to interpretation. According to Shaw, the policy's failure to say anything about a knowledge requirement definitively shows that the parties did not intend any such requirement, but instead intended for the possession of government property without proper authority to be a strict liability offense. The Union, on the other hand, contends that the policy's silence renders it open to interpretation, allowing the arbitrator to read into it (or infer from it) a knowledge requirement.

The Court noted that the language would have been clearer if it had provided that the possession of government property without authorization was a terminable offense whether or not the employee had knowledge that the property belonged to the government, or, in contrast, if it provided that an employee would be in violation of the policy only  if he "knowingly possessed government property without authorization." Since it did neither, however, the language used was subject to interpretation

The next question, according to the Court, was whether the arbitrator had in fact interpreted the language. To resolve that question an analysis of the arbitrator's reasoning is called for. Here, however, the arbitrator failed to expressly articulate a rationale from which that analysis could be performed. According to the Court:...

... there is no indication that her imposition of the knowledge requirement resulted from interpretation of the agreement instead of her own view of right and wrong. She did not characterize her task as one of interpretation. She did not describe the plain meaning of the terms in the policy. She did not invoke canons of construction. She did not look to extrinsic aids to find the parties' intent. She did not explicitly do any of the things that we ordinarily associate with an interpretive effort. But that does not mean that she failed to do some of them implicitly — in her head instead of on the page.

Given that the state of the record could support either alternative, i.e interpretation or modification, the Court concluded that, "unlike Buridan's ass" it could make a decision between the two equally plausible choices. Relying on the Supreme Court's decision in United Steelworkers of America v. Enterprise Wheel & Car Corp., the Court held that unless it was "apparent" that the arbitrator had exceeded her authority the award should be confirmed.  This rule, observed the Court, reflected the strong, although not irrebuttable, presumption that the arbitrator interpreted the agreement rather than modifying it. The Court noted:

The Enterprise Wheel presumption, which we apply today, helps keep the promise of arbitration. By presuming, in the absence of evidence to the contrary, that an arbitrator's award rested on an interpretation and not a modification of an agreement, we discourage parties from trying to snatch court victories from the jaws of arbitration defeats.

Sunday, September 11, 2016

Employee suspended and forgotten- Arbitrator orders reinstatement

Grievant was employed as an Investigator by the State of New York-Office of Medicaid Inspector General. In October of 2012 he was suspected of emailing to his personal email address, and to the Comptroller of Albany County, files containing sensitive information, including personally identifiable information and health data. The Office's First Deputy performed a search of emails sent from grievant's computer and confirmed that emails were sent to an unencrypted account and to a person not authorized to receive the data. Based on this information grievant was suspended with pay and escorted from the building. According to the arbitrator there was some question concerning whether grievant was informed of the charges against him and it was "unclear" if any further investigation was conducted between October 19, 2012 and April of 2015.

On April 24, 2015 (after an inquiry by grievant's attorney to the Attorney General concerning his status) grievant was interviewed about the transmission of information protected by HIPAA sent to himself and the Comptroller in 2012. Two months later, the Office issued a Notice of Discipline asserting that the transmission of these emails constituted misconduct and converted his suspension to unpaid status. His union (Public Employees Federation) demanded arbitration, and the case was submitted to Arbitrator Ira Lobel for resolution.

Arbitrator Lobel agreed with the State that the one year limitation on the imposition of discipline did not apply because the matter fell within the contract’s exception for conduct which might constitute a crime.

Nevertheless he found that the State had simply waited too long to impose discipline:

In this case, OMIG knew about the alleged misconduct in October, 2012, when it placed [grievant] on his paid leave. It did nothing to further investigate; its referral to the appropriate State or Federal agencies was minimal at best. Based on the testimony it appears OMIG simply placed [grievant] on leave and forgot about him. When it filed the NOD, it was over two and a half years after the initial suspension. This is simply too long a period to keep any employee in an uncertain situation, with no knowledge of the charges against him. Even though [grievant] was on a paid suspension, he had legitimate concerns regarding his status that an employer should be obligated to address.

While he considered grievant’s conduct “problematic” and a technical violation of HIPAA rules. Arbitrator Lobel dismissed the charges against grievant as untimely.

Arbitrator Lobel's award can be found here.

Sunday, September 4, 2016

Police officers exchange of racially derogatory text messages found sufficient cause for dismissal

Four officers of the Ft Lauderdale Police Department were investigated for exchanging racially charged text messages and at least one video. The messages were brought to the attention of the Department by the former fiancée of one of the officers. The former fiancée had access to the messages during the relationship and preserved copies them. Several of the messages contained disparaging racial references, including repeated use of the "N" word. The messages also contained disparaging references to other officers and the efficiency of the Department. Following the investigation one of the officers (the creator of the video) resigned and the remaining three were dismissed. One did not challenge the dismissal. Two pursued their discipline separately before Arbitrators Carey M. Fisher and James Reynolds. Both arbitrators denied the grievances and upheld the terminations.

Both arbitrators rejected the officers claims that the messages had been improperly obtained or were protected by the First Amendment. On the merits, both found the evidence supported the Department's charge that each officer had engaged in "conduct unbecoming" and conduct "prejudicial to the good order of the Department."

Concerning the use of the "N" word, Arbitrator Fischer observed:

[Grievant] argues that it is merely that – a word, the meaning and import of which is dependent on the context and thought process of both the speaker and the listener, or in this case, the author and recipient. He denied any intent to denigrate African Americans. He denied any intent to express hateful, racist expressions. Yet, the word itself, and the context in which it was used, along with other exchanges amongst the officers, leads to the inescapable conclusion that its use was distasteful, unprofessional and derogatory. Yes, just a word, but one that conjures up images for which a proper context does not exist when used today by police officers (white or black) about residents of Fort Lauderdale.

Arbitrator Fisher noted that the use of the word in this case this was not "a slip of the tongue in a fit of pique" or one time indiscretion, but rather the denigration of a group "as part of one's personal entertainment.”

Concluding that the conduct involved damaged the Department’s relationship with the community  Arbitrator Fischer found the conduct involved directly impacted the Department’s  ability to perform its duties. Arbitrator Fischer observed:

The tasks facing police departments are considerable as populations have grown more culturally, racially, ethnically and religiously diverse. It is well known throughout this country that tension and conflict exists between police and some populations of the communities they serve. Unavoidably, the role police have in enforcing the law and maintaining order places officers in key positions to deal with all kinds of conflicts. Additionally, the actions of officers and the perceptions of the public result in heightened media, political and public attention. Bad news travels fast. Perceptions become reality. Enough gossip turns into fact.

Accordingly he found that the City had established cause for the officer’s dismissal.

In his award, Arbitrator Reynolds reiterated that police officers are held to a higher standard of conduct than other professionals:

... the primary duty of police officers is that of law enforcement. As such they are often the first to be involved in actions that could result in depriving citizens of their freedom. That is a formidable responsibility. In order to effectively discharge their responsibilities police officers must have the respect of the community they serve. That requires that they adhere to high standards of conduct in both their private and professional lives.

Like Arbitrator Fischer, he rejected the officer’s assertion that his intent was not to be racist or disparaging, finding that the comments were clearly racist “and his intentions do not provide any other meaning."

Even accepting as believable the officer’s testimony that he was not a racist, Arbitrator Reynolds found:

His comments were racially offensive, and some were demeaning to members of the Department. His conduct was clearly unbecoming that of a police officer and the record shows that it was prejudicial to the good order of the Department. It is not likely that he would repeat his misconduct, but a cloud over him would persist that would hamper his effectiveness as a police officer in the City of Fort Lauderdale.

Finding that there was a convincing showing that the officer’s conduct had a “disturbing effect “ on the community’s trust in the Department, Arbitrator Reynolds concluded:

What fundamentally matters here is the issue of [grievant’s] conduct as reasonably viewed by the Department and ultimately the community. Through that perspective the record supports a finding the [grievant’s] termination was for cause.

Arbitrator Fischer's award can be found here. Arbitrator Reynolds' award here.

exchanges amongst the officers, leads
s use was
distasteful, hat conjures up images for which a proper context does not
exist when used today by police officers
(white or black) about residents of Fort

Sunday, August 28, 2016

Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator's award

A maintenance employee of the University of Connecticut Health Systems was caught smoking marijuana on the Health Center premises during his scheduled shift. He was found to be in possession of approximately three quarters of an ounce of marijuana. His employment was terminated and the propriety of that action was submitted to arbitration for resolution

In his award, Arbitrator Jeffrey Selchick rejected grievant's explanations for his actions and found  that he had deliberately taken the marijuana to work so he could smoke it there. He concluded, however, that termination was too severe and not supported by just cause. He noted that the Health Center's policy permitted, but did not require, termination for drug related offenses. He also found mitigation in grievant's fifteen years of discipline free employment prior to the incident. Finally, while noting that grievant's job duties raised some safety and security concerns, he concluded that grievant's return to the workplace would not create a danger to persons or property. The arbitrator reduced the termination to a six month suspension, ordered that grievant be subject to random drug and alcohol test for a one year period, and imposed a last chance provision on the reinstatement.

The Health Center sought to vacate the award, contending that it was contrary to public policy. The trial court (here) granted the request to vacate, finding the reinstatement order contrary to a strong public policy against drug use in the workplace.

The Connecticut Supreme Court has now reversed that decision, effectively confirming the arbitrator's award.  State of Connecticut v. Connecticut Employees Union Independent et al.   The Court applied the standards it developed in Burr Road Operating Co. II. v. New England Health Care Employees Union to assess whether an arbitrator's award reinstating an employee was contrary to public policy. The Burr Road decision, issued after the arbitrator's award and the trial court's decision in this case, synthesized four principal factors for use in making that determination:

(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant's conduct; and (4) whether the grievant is incorrigible.

Applying that test here, the Court determined that neither the Connecticut nor the federal drug free work place policies compelled termination as the only appropriate penalty for drug related misconduct. Regarding the second factor, the Court agreed with the conclusion of the arbitrator that grievant's misconduct "was not of such a nature that his return to work would endanger persons or property." The Court found that neither of these two factors supported a conclusion that the award was contrary to public policy.

The Court found the third factor "essentially ... neutral" noting that the risks created by grievant's misconduct jeopardized mostly him rather than the Health Center's clients or other parties. Finally, the Court accepted the arbitrator's conclusion that grievant was unlikely to engage in similar conduct in the future, especially given the significant discipline imposed (a six month suspension), the random drug and alcohol testing, and the last chance condition on his reinstatement. Nor would the award encourage other employees to engage in similar conduct.

The Court summarized its holding:

In closing, we emphasize that public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue. Our general deference to an experienced arbitrator’s determinations regarding just cause and the appropriate remedy is vital to preserve the effectiveness of an important and efficient forum for the resolution of employment disputes. If an employer wishes to preserve the right to discharge employees guilty of misconduct such as that at issue in this case, thereby removing the matter from an arbitrator’s purview, it remains free to negotiate for the inclusion of an appropriate provision in the collective bargaining agreement that would achieve that result.

Justice Espinosa concurred but expressed a concern that rigid application of the Burr Road test may encourage arbitrators to "self insulate" their awards from review by adhering closely to the Burr Road formula and making an explicit finding on the absence of a risk of recidivism. She also cautioned that failing to consider more prominently the effect of an arbitrator's award on other employees may send an unacceptable message to other employees and the public concerning the conduct in question.

Sunday, August 21, 2016

Discipline upheld for employee's refusal to participate in meeting without union rep where no reasonable basis to fear discipline

Arbitrator Sharon Gallagher has upheld discipline for an employee who refused to participate in a meeting with her supervisor without the presence of a union representative where the arbitrator concluded that the employee had no reasonable basis to fear discipline could result from the meeting.

Grievant was employed as a social worker by Wabasha County, MN. She had a somewhat difficult history with her supervisors but the primary incident in dispute arose from an email request from grievant's supervisor requesting that she meet with him. After an exchange of messages about the subject of the meeting grievant responded:

    Because of how the last conversation with you about this topic ended I will bring a union representative as a witness in this meeting.

Thereafter, grievant exchanged email messages with the County's HR Director, repeating her belief that the meeting could result in discipline and her request for union representation at the meeting. At the HR Director's request, grievant called her. Grievant summarized that conversation is a later memo:

I placed a phone call to Krissa Bedsted (sic) from the office of Tammy Loretz. I stated that I had Tammy Loretz as my union representative and I was invoking my Weingarten Rights as I believed the conversation could lead to disciplinary action. Krissa stated that it was not appropriate to have a union representative and I was not able to invoke my Weingarten Rights. ...  Krissa stated that I would not be written up, that she could guarantee the conversation would not lead to disciplinary action. ...

Grievant indicated that "under duress" she agreed to meet with her supervisor without a union representative.

A meeting was scheduled but grievant again declined to meet without her union representative.

Several days later grievant's supervisor again emailed her, scheduling a new meeting and advising grievant that "this is not a disciplinary meeting, therefore having a union representative is not warranted." Grievant appeared at the scheduled meeting with a union representative and refused to proceed without her presence. As a result of this (and some previous issues) the County issued a letter of reprimand to grievant.

When the dispute was submitted to arbitration, Arbitrator Gallagher rejected the County's reliance on the earlier issues but upheld discipline for the refusal to participate in the schedule meeting as directed. Arbitrator Gallagher reduced the letter of reprimand to a verbal warning.

After a review of relevant case law, Arbitrator Gallagher noted that under Weingarten an employee's belief that discipline may result from a meeting must be "objectively reasonable." Concluding that this was not the case here, the Arbitrator observed:

It is of prime  importance that [grievant's] subsequent request for union representation came after ... she had received Bedsted's verbal assurance and Simonett's written assurance that no discipline would result from a meeting with Simonett. The question arises whether[grievant] could reasonably believe that the April 23rd meeting with Simonett might result in her being disciplined despite Simonett's e-mail assurance and HR Director Bedsted's verbal assurance that the meeting would not result in discipline. In my view, [grievant's] belief that she would be disciplined as a result of the April 23rd meeting with Simonett was unreasonable based on the facts of the record here. 

Finding that grievant's refusal to participate in the meeting constituted unprotected insubordination the Arbitrator concluded:

As is clear form the cases listed and described above, an employer may discipline an employee for insubordination if the employee unreasonably and repeatedly insists on union representation in a non-disciplinary meeting. Note that the magic words, "I refuse to meet with my supervisor," are not required for arbitrators and the Board to find discipline for insubordination is warranted. [Grievant's] showing up with Steward Loretz on April 23rd and handing Simonett the Weingarten  card when she had been told verbally and in writing that no discipline would come out of the meeting and nonunion representative was called for, constituted clear insubordination. [Grievant] had been ordered to attend without representation by both Bedsted and Simonett and she chose to defy those orders.

Arbitrator Gallagher's award can be found here.

Update: In Verizon California, Inc. the NLRB refused to defer to an arbitrator's award that had found that an employee was not entitled to the assistance of a union representative because the employee did not reasonably fear discipline. The Board found the arbitrator's conclusion "palpably wrong." The question of deferral to an arbitrator's award is also discussed here.

Sunday, August 14, 2016

Eighth Circuit on the law of the shop and the scope of the issue to be decided

The Eight Circuit recently issued its decision on the NFL's appeal of the District Court's decision vacating the Adrian Peterson arbitration award. The earlier proceedings are discussed at Adrian Peterson, arbitration and the law of the shop. As noted there, the District Court vacated the award of the arbitrator upholding the six game suspension of Peterson. The court found that the award ignored the "law of the shop" because the arbitrator allegedly ignored an earlier award involving Ray Rice which it believed limited the allowable suspension to two games. The court also found that the arbitrator had exceeded his authority because he "strayed beyond the issues submitted by the NFLPA."

The Circuit overturned both conclusions

Initially it rejected the claim that the arbitrator exceeded his authority when he allegedly  retroactively applied a "new" disciplinary policy,contrary to the "law of the shop." The Court observed:

An arbitrator acts within his authority as long as he is arguably construing or applying the contract, even if a court disagrees with the arbitrator's construction or application. Misco, 484 U.S. at 38. The same holds true for the law of the shop: as long as the arbitrator is arguably construing or applying arbitral precedents, a court's disagreement with the arbitrator's application of precedent is not sufficient grounds to vacate an arbitration decision.

The Circuit Court found that the arbitrator analyzed the Union's claims and the prior awards the Union maintained supported its position. While he disagreed with the Union's position, he was acting within his authority in reaching his conclusion.

On the second point the Court noted:

...the Players Association contends that the arbitrator exceeded his authority by altering the issues presented for decision. It argues that the arbitrator was limited to adjudicating "`the pure legal issue' of whether the New Policy could be applied retroactively. The district court agreed, concluding that the arbitrator "strayed beyond the issues submitted by the NLFPA."

...[i]t is true that "[w]hen two parties submit an issue to arbitration, it confers authority upon the arbitrator to decide that issue." Local 238 Int'l Bhd. of Teamsters v. Cargill, Inc., 66 F.3d 988, 990-91 (8th Cir. 1995) (per curiam) (first emphasis added). But the parties here did not stipulate to the issues for arbitration. The scope of the arbitrator's authority, therefore, was itself a question delegated to the arbitrator. W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765 (1983). "It is appropriate for the arbitrator to decide just what the issue was that was submitted to it and argued by the parties." 

The Court determined that "it is not the exclusive prerogative of the party seeking arbitration to define the issue for arbitration." It found that the NFL was free to challenge the premise contained within the Union's proposed issue, i.e. that the policy was a new one authorizing discipline previously unavailable. 

Finally, the Court addressed two claims that the District Court found unnecessary to consider. It rejected the claim the Arbitrator Henderson was "evidently partial," and that the arbitration was "fundamentally unfair."

Sunday, August 7, 2016

Fitness for duty, just cause and the role of the arbitrator

These were the topics addressed in a recent decision of the Appellate Court of Illinois in The City of Rockford v. Policemen's Benevolent and Protective Association, Unit 6.

Grievant was employed by the City as a police officer. In August of 2009 he was involved in an altercation involving a hand to hand struggle with a suspect over the officer's weapon. During the altercation grievant shot and killed the suspect. The case was presented to a grand jury but no indictment followed. Grievant was not disciplined for his actions during this incident. After the shooting, grievant was placed on paid leave and was treated for PTSD. In July of 2010 the Chief ordered him to report for a psychological fitness for duty exam. The city retained an expert to examine grievant, and grievant, as was his right under the labor agreement, retained his own expert.

The City's expert found grievant unfit for duty, while grievant's reached a contrary conclusion. Relying on the report of its retained doctor, the City terminated grievant's employment. That termination was grieved and submitted to Arbitrator Elizabeth Simon for resolution.

The arbitration hearing was bifurcated. The arbitrator first addressed the Union's contention that in light of the conflicting medical opinions the City had no right to proceed to termination. The arbitrator rejected this claim, finding that there was no contractual prohibition on the City proceeding but noting that any decision was subject to the just cause provision of the labor agreement. The matter then proceeded to a second hearing on whether the City's action was supported by just cause.

After the second hearing the arbitrator found that the City failed to prove grievant's unfitness for duty. She largely rejected the conclusion of the City's doctor and found grievant's expert more persuasive. She ordered the City to reinstate grievant to the position he held immediately prior to his termination. However, she further ordered that before he could return to active duty he would be required to be evaluated by a third psychologist whose fitness determination would be final.

The City sought to vacate Arbitrator Simon's award. The circuit court confirmed the just cause portion of the award, but vacated the remedy provision, remanding the case to the arbitrator to create a new remedy in which the arbitrator retained decision-making authority. The City appealed that decision, and the Union appealed the Court's rejection of its efforts to obtain back pay.

The Appellate Court has now affirmed, upholding of the arbitrator's just cause determination but vacating that portion of the award dealing with the remedy.

The court found no basis to overturn the arbitrator's just cause analysis. It rejected the City's public policy challenge, finding it "based on rejecting a factual determination by the arbitrator." It also questioned the City's approach, noting:

The City’s argument that it should not be limited by section 1.2’s just-cause requirement caused much confusion in this case. The City essentially argued that it should have the power to terminate based on section 15.15 alone (unfitness), without the limitations of section 1.2 (just cause). In this way, the City encouraged the arbitrator to view the ultimate question as one of fitness, not just cause. By encouraging the arbitrator to view the ultimate question as one of fitness, the City forfeited an opportunity to argue that, even if [grievant's] mental condition did not rise to the level of unfitness, [grievant's] mental condition, combined with other factors, such as policy violations and firearm misuse, could constitute just cause to terminate. We believe that, in erroneously framing the ultimate question as one of fitness, the City invited the arbitrator to issue the somewhat confusing analysis of which the City now complains, including a weak comparison of the experts and a seemingly dissonant remedy. The award reads as though the arbitrator did not realize that she could both find [grievant] unfit and still find no just cause to terminate (based on mitigating factors such as trauma incurred on the job, and, despite prior policy violations, a good disciplinary record and, thus, effective condonation by the department of the policy violations and firearm misuse (see, e.g., Des Plaines, 2015 IL App (1st) 140957, ¶ 13, ¶ 21)). For the reasons stated, however, the arbitrator’s somewhat confusing analysis does not provide a basis to set aside the award in favor of a cleaner analysis, particularly where the City encouraged the arbitrator to view the case as it did.

As to the remedy, however, the Court found that the arbitrator exceeded her authority by effectively delegating the final decision to a psychologist:

The parties bargained for an arbitrator to decide the remedy, not a psychologist. ...Here, the arbitrator placed the question of [grievant's] return to active duty at the sole discretion of a psychologist. We agree with the circuit court that the arbitrator’s remedy “punts” a decision to a psychologist and, thereby, abdicates all “hallmarks of adjudicative procedure.”

The court also found the award inconsistent with the cba, pursuant to which the Chief can appoint an expert and the officer subject to an exam may procure his or her own expert.

Accordingly the court vacated the entire remedy portion of the award and remanded the issue to the arbitrator, which also allows the Union to renew its claim for back pay.

Sunday, July 31, 2016

NHL seeks to vacate Wideman award, discharges arbitrator

The NHL recently announced that it was seeking to vacate the award of Arbitrator James Oldham that reduced the suspension of Calgary Flames defenseman Dennis Wildeman from 20 games to 10. Wideman had been suspended for 20 games for allegedly intentionally striking an opposing player. Arbitrator Oldham concluded that Wideman lacked the intent to injure and that the conduct was more appropriately  subject to a 10 game suspension.

The collective bargaining agreement between the NHL and the NHL Player's Association contains a newly negotiated right of appeal to a Neutral Discipline Arbitrator. Pursuant to the cba, the NDA

...shall determine whether the final decision of the League regarding whether the Player’s conduct violated the League Playing Rules and whether the length of the suspension imposed were supported by substantial evidence.

The NHL's complaint alleges that the arbitrator exceeded his authority by "disregarding the standard of review set forth in the CBA" and improperly conducting a de novo review of the suspension.

The Players' Association has filed a Motion to Dismiss or, alternatively, to confirm the award.

It has also been reported (NHL Dismisses Neutral Discipline Arbitrator Who Reduced Wideman's Suspension) that the NHL has discharged Arbitrator Oldham, as it may do under its collective bargaining agreement.

Sunday, July 24, 2016

Arbitrator: Fight on school grounds warrants dismissal even if no students are present

The Respondent in a teacher tenure proceeding was a tenured support staff employee of the Pleasantville, NJ school district. While she was working at the office of the vice principal another employee came to the office to deliver an item to the vice principal. Aware that this employee had recently been promoted to Director of the C.A.R.E program, Respondent asked the other employee why she had not been included on the C.A.R.E. provider list. The employee responded that "everyone knows she ... does not like children."

A short time later, Respondent approached the employee and asked her about the remark. An exchange of words escalated into a physical confrontation and the two "started to wrestle, punching, and pulling hair" until they were separated by security.

As a result of this incident the district filed tenure charges against both employees. Respondent was charged with participation in a physical altercation that "interfered with the quality of the educational and professional environment of the school, the students' education" which "created an unsafe working environment for other District employees."

The charge was submitted to Arbitrator Lewis Amis for resolution.

Arbitrator Amis rejected Respondent's contention that she had only been defending herself, concluding that she had become "too deeply embroiled" to avoid responsibility. While she had not been the first to become physical, she had become "fully engaged."

Finding the tenure charge supported by the evidence, Arbitrator Amis upheld the dismissal, concluding:

It goes without saying that violence in any workplace need not be tolerated. That principle is especially relevant in an educational setting where a core value should be the use of reason as opposed to irrational force to resolve differences. The Respondent's argument that there were no repercussions from the altercation that affected the pedagogical and administrative stability of the district, is without merit. Even though there were no student witnesses, the fight was a public event in a public school setting, and it was highly publicized. The district had no choice but to respond firmly, as it did. The Respondent's dismissal, therefore, will be upheld. 

Arbitrator Amis' award can be found here.

Sunday, July 17, 2016

Arbitrator's reinstatement of employee terminated for violation of workplace violence policy not contrary to public policy

Grievant was employed by the University of Chicago Medical Center as a custodial assistant. A coworker of grievant reported to UCMC's HR department that on several occasions grievant had referred to his supervisor as a "bitch" and stated he wanted to choke or strangle her. After conducting an investigation, the Medical Center dismissed grievant. That action was submitted to arbitration for resolution.

The arbitrator concluded that grievant made the statements he was alleged to have made, but that these comments, while serious, did not warrant dismissal. He ordered the Medical Center to reinstate grievant without back pay.

The Medical Center sought to vacate the award, claiming that the reinstatement order was contrary to Illinois' public policy against violence in the workplace. It argued that if grievant were reinstated he may make similar statements in the future, or even act on threatening statements, and that other employees may be deterred from reporting threats or acts of violence.

The District Court rejected this effort. It noted:

These same arguments have been advanced by employers in other cases, and they have consistently been deemed insufficient to show that a grievant's reinstatement violates a public policy against workplace violence. Notably, UCMC has not cited a single case, and I have found none, in which a court has found the public policy against workplace violence to have been violated by an employee's reinstatement. Indeed, even in cases involving conduct ostensibly more threatening than [grievant's], courts have steadfastly refused to vacate arbitration awards based on public policy.

The Court observed that the arbitrator had, at least implicitly, made a determination that grievant would pose no threat to others if returned to work.

In light of the arbitrator's factual findings, and the narrow scope of the public policy exception, the Court denied the Medical Center's request to vacate and granted the Teamsters request to confirm

The opinion of the Court in University of Chicago Medical Center v. Int'l Brotherhood of Teamsters can be found here.

Sunday, July 10, 2016

Arbitrator erred in refusing to consider evidence of blood alcohol content

The cba between the Monroe County Sheriff's office and the Monroe County Deputy Sheriff's Association provided that in reviewing disciplinary action, "the arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence."

Grievant, a Deputy Sergeant, was terminated after his involvement in a one car, rollover accident, after which it was determined that he was driving while intoxicated. He was charged with five violations:

(1) failure to obey Vehicle and Traffic Law § 1192 (3), DWI; (2) failure to obey Vehicle and Traffic Law § 1192 (2-a) (a), aggravated DWI with a blood alcohol content of .18 percent or greater; (3) failure to obey Vehicle and Traffic Law § 1192 (2-a) (b), aggravated DWI with a child in the car; (4) failure to obey Penal Law § 260.10 (1), endangering the welfare of a child; and (5) engaging in conduct unbecoming of his position.

disciplinary hearing was conducted during which grievant was represented by the Sheriffs' Association. The hearing panel unanimously sustained all five charges. On review, the arbitrator found certain evidence, including the chemical test establishing grievant's blood alcohol content at .18 percent, was inadmissible.  As a result, the arbitrator dismissed charges 1 and 5. On the remaining charges, the arbitrator found that other employees engaging in similar conduct had not been terminated, and reduced the termination to a demotion. 

The Sheriff's Office appealed the award, and the trial court vacated the award, finding that the arbitrator had exceeded his authority by improperly neglecting to consider evidence received at the disciplinary hearing. Accordingly it vacated the award and ordered a rehearing before a different arbitrator. 

On the Union's appeal the Appellate Division has recently affirmed the lower court's decision. The Court held:

...we conclude that the arbitrator clearly exceeded his authority as provided by the CBA. The CBA mandated that "[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence." Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award ...

The court also rejected the Union's claim that the court erred in ordering a rehearing before a different arbitrator.

The Court's opinion can be found here.

Sunday, June 26, 2016

Recent Developments-Contract interpretation

Covenant of Good Faith and Fair Dealing

The cba between The Western Sugar Cooperative and the Teamsters creates two categories of employees. Employees who work at least 1680 hours within a twelve months period are classified as "year round employees." Employees failing to meet that threshold are categorized as "seasonal" employees. The cba provides greater employment security for year round employees. No provision of the cba explicitly limits the company's ability to lay off seasonal employees. When Western Sugar laid off two seasonal employees to prevent them from attaining the number of hours necessary for them to become year round employees the Teamsters filed a grievance. The dispute was submitted to Arbitrator Frederick Kessler for resolution. Arbitrator Kessler upheld the grievance. (His award can be found here) He concluded that the company's actions in laying off the employees specifically for the purpose of making them ineligible to become year round employees violated the implied "covenant of good faith and fair dealing." He observed:

If this practice is upheld, it makes meaningless the provisions of the Labor Agreement, which describes the process, which the parties agreed, an employee could attain year-round status. Arbitration cannot sanction an interpretation which makes a provision meaningless. Such an interpretation destroys or injures the right of the other party to receive the fruits of the contract.

Western Sugar sought to vacate the award, but the District Court refused to do so. The Court found that the Arbitrator was acting within his authority in interpreting the cba. Western Sugar Cooperative v. Teamsters Local 190. Rejecting the company's contrary claim, the Court noted:

Neither party disputes ... that the subject matter of the grievance was properly before the arbitrator, or that he had the authority to render a decision on the grievance. Instead, Western Sugar disputes the reasoning upon which the grievance was decided. This is, in essence, not a question of whether the arbitrator exceeded his boundaries but whether he correctly interpreted the CBA.

Western Sugar argues that there is no express provision in the CBA that could have supported the result found by the arbitrator and provides excerpts of testimony from the arbitration in support of its argument. But so far as the arbitrator's decision concerns construction of the contract, "the courts have no business overruling him because their interpretation of the contract is different from his." Enterprise Wheel & Car Corp.,363 U.S. at 599.

The Court concluded that the Arbitrator's reliance on implied terms was within his authority to interpret and apply the cba.

NLRB's refusal to defer to arbitrator's award overturned

The DC Circuit has refused to enforce a decision of the NLRB rejecting an arbitrator's award and finding that Verizon committed an unfair labor practice by telling employees to remove informational picket signs from their vehicles. Verizon New England v. NLRB  The cba waived employees' right to picket during the contract term. When a labor dispute arose prior to expiration of the cba, employees visibly displayed pro-union signs in cars parked on Verizon property and lined up so passers-by would see the signs. An arbitrator ultimately concluded that this activity was "picketing" prohibited by the language of the cba. Despite the arbitrator's award,  the NLRB General Counsel issued a complaint. The ALJ found that the arbitrator's decision was not "palpably wrong" and was entitled to deference. On Verizon's exceptions, the Board rejected the arbitrator's conclusion, finding it "clearly repugnant" and refused to defer.

The Board determined that the language of the cba did not constitute a clear and unmistakable waiver. Reviewing the contract language, the Board concluded that "the contractual provisions cited by the Respondent and considered by the arbitration panel neither address nor reasonably encompass employees' display of signs in their personal vehicles...."

In rejecting the Board's analysis, the Court concluded 

To state the obvious, the fact that the Board might read a contract term differently than the arbitrator read it does not suffice to make an arbitration decision "palpably wrong." Rather, as the Board has previously stated, its highly deferential standard of review "recognizes that the parties have accepted the possibility that an arbitrator might decide a particular set of facts differently than would the Board. This possibility, however, is one which the parties have voluntarily assumed through collective bargaining."

The Court found that the arbitration panel's decision was susceptible to an interpretation consistent with the Act and was not a "palpably wrong" interpretation of the cba. Accordingly it found the Board's contrary conclusion unreasonable and denied enforcement. 

The Board's decision in this case predated its newer, less deferential standard of review announced in Babcock & Wilcox Construction Co. 361 N.L.R.B No.132

Erosion of the bargaining unit

Arbitrator James Lundberg issued an award in a dispute between ExxonMobil and Steelworkers Local11-470. Following the retirement of a bargaining unit janitor at the company's Billings, Montana facility, ExxonMobil contracted the word formerly performed by the employee to an outside janitorial service. The Union grieved the decision, claiming that the company's actions violated a cba provision stating:

 "The Company will not erode the bargaining unit by job reduction through transferring work customarily performed by classifications covered by this Agreement to employees excluded from the bargaining unit in Article II of this Agreement."

In its defense, the Company relied on language, more recently added to the cba, that stated:

"This agreement shall not limit the right of the Company to contract out work so long as such contracting does not cause a layoff of employees covered by this agreement."

The Company maintained that the erosion of the bargaining unit language was intended to deal with the transfer of work from bargaining unit employees to salaried employees. It claimed that the later negotiated contracting language was clear and unambiguous and allowed the company to contract the work in issue since no employees was laid off as a result. The Union relied on a 1978 award under a predecessor contract which it alleged did not limit the erosion language in the manner the company claimed.

Rejecting the company's position, Arbitrator Lundberg noted that the 1978 award, as well as an award addressing the interrelationship between the two cba provisions had never been modified in negotiations. He concluded:

While the Employer clearly disagrees with the interpretation of the bargaining unit erosion language made in 1978, the parties have not bargained any change in the provision. Moreover, the negotiations have repeatedly stalled over elimination of the In-Plant Janitor position. The Company can demonstrate that the cost of maintaining the position is greater than using a contractor but either the Union is not asking for a quid pro quo or the Employer is not offering something in return. Instead, the parties continue to approach the issue indirectly. By not coming to terms with the underlying issues in negotiations the parties have repeatedly needed up in arbitration. In this situation, the work of the In-Plant Janitor should continue to be filled by a bargaining unit employee, until such time as the parties are able to resolve the dispute through negotiations. 

The Company sought to vacate the award arguing, inter alia, that the Arbitrator improperly relied on earlier arbitration awards, and had improperly modified the cba by changing the meaning of the erosion language from transfer of work to other Company employees to transfer to third party, non employee contractors.

The Court rejected this effort, concluding

... Arbitrator Lundberg looked at and at least arguably construed and applied the Agreement. That he also considered the parties' past practice, informed by and reflected in previous arbitration awards construing the same bargaining unit erosion provision as that contained in the 2012 Agreement, was not error and did not render his Award one that did not derive its essence from the Agreement. Thus, it cannot reasonably be argued that Arbitrator Lundberg simply dispensed his own brand of industrial justice.

The Court's opinion can be found here.