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.