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.

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