Sunday, September 17, 2017

Quick Hits - Fundamental fairness, racial profiling and sex with a (former) student

The ongoing dispute about the discipline of Ezekiel Elliott

Dallas Cowboy Ezekiel Elliott was notified that he was suspended for six games. The suspension was related to allegations of domestic violence. The propriety of that discipline was submitted for review pursuant to the provisions of the cba between the NFL Players Association and the NFL. Even before a decision was issued, the NFLPA sought to vacate "the forthcoming Arbitration Award." The Union claimed that Elliot was being denied a "fundamentally fair" hearing and that important information had been withheld in the disciplinary process and from the "unilaterally appointed" arbitrator. On September 5, 2017 Harold Henderson issued his decision. (here) He described the appeal process under the CBA as "a unique exercise in labor arbitration." Henderson concluded that the Commissioner's decision was not arbitrary or capricious and that the process described in the cba had been "followed closely, step by step." Thereafter, the NFL filed a complaint in a different federal district seeking to confirm the award. The Sports Esquires links to the various documents and pleadings in the cases here. On September 8, 2017 District Court Judge Amos Mazzo granted (here) the NFLA's request for a preliminary injunction, enjoying the imposition of the discipline until a final decision could be reached on the petite to vacate. Judge Mazzant concluded;

The question of what happened between Elliott and Thompson in July 2016 is not before the Court. Nor is the Court making any credibility findings. As previously stated herein, the Court has a limited role in this case. The question before the Court is merely whether Elliott received a fundamentally fair hearing before the arbitrator. The answer is he did not. The Court finds, based upon the injunction standard, that Elliott was denied a fundamentally fair hearing by Henderson's refusal to allow Thompson and Goodell to testify at the arbitration hearing. Their absence effectively deprived Elliott of any chance to have a fundamentally fair hearing. The Court grants the request for preliminary injunction.

The NFL has requested a stay of Judge Mazzant's preliminary injunction and has indicted its intent to pursue the issue to the Fifth Circuit.

Update: Judge Mazzant has denied (here) the NFL's request for a stay. 

Arbitrator rejects discipline of Criminal Investigator for alleged acts of racial profiling

In September of 2015 several employees of the Oregon Department of Justice, including Grievant, were asked to trial a new software program the office was considering purchasing. Grievant was assigned to the Fusion Center, and his primary responsibility was to conduct threat assessments. The software being tested enabled a user to, among other things, do a word search on public Twitter accounts. As part of his trial, and unrelated to any pending investigation, grievant conducted a word search for "#blacklivesmatter" and "fuckthepolice." The software also had a geo-locate function which enabled grievant to view usage of the terms in the immediate area of his office. In doing so he discovered a twitter account with images of what appeared to be a police officer in the crosshairs of a rifle scope. Further search disclosed a substantial number of images "including political cartoons, personal photographs ... and other hashtags." Grievant was unaware of the person to whom the account belonged, but another employee identified that person as the Department's Civil Rights Director. Grievant notified his supervisor of what he had found and was ultimately instructed to prepare a memo about the discovered images. The memo was eventually shared with the Attorney General who asserted that grievant had engaged in racial profiling in his search terms. An outside attorney was hired to conduct an independent investigation, and grievant's employment was ultimately terminated. The asserted grounds for the termination were alleged violation Oregon Statutes prohibiting the collection and maintenance of "... information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct," violation of the Department's Privacy Policy, and dishonesty during the investigation. Reviewing the termination, Arbitrator David M. Blair noted that while repeated references were made to alleged racial profiling, no such formal charge was leveled against grievant but the use of that label "most likely had a significant impact upon the Employer's decision to discipline the Grievant." Overturning the termination, and ordering grievant's reinstatement with back pay, Arbitrator Blair noted a number of "self inflicted wounds" by the Department:

(1) it ordered the Grievant to capture the images which are the subject of this grievance, (2) shared preliminary personnel information directly with [Civil Rights Director] Johnson, (3) shared preliminary personnel information with prospective campaign donors, and (4) shared preliminary personnel information with the media. It is of no surprise that the Employer set in motion a series of events that could have no other outcome than to deliver severe punishment for the declared perpetrator.

Arbitrator Blair also faulted the Department's introduction of a new tool with no guidance or training on its use. He found no evidence of any improper motive on the part of the grievant and nothing to support a finding of intentional deception. Regarding the charge of dishonesty, the Arbitrator noted:

As this matter involves a most damaging accusation of dishonesty against a law enforcement officer, the arbitrator specifically negates such charge and orders the removal of any and all such references from the Grievant's personnel file as it relates to this matter

Arbitrator Blair's award can be found here.

PA Supreme Court declines review of challenge to arbitrator's reinstatement of teacher

The Pennsylvania Supreme Court has declined to hear an appeal by the Cornwall-Lebanon School District of a decision upholding an arbitrator's reinstatement of a teacher who was dismissed for, among other claimed offense, having a sexual encounter with a student on the night of her graduation.

An arbitrator had found that while the teacher had significant interaction and communication with the student prior to graduation, the sexual relationship did not begin until she had graduated. He concluded, therefore, that the teacher did not have culpability for the relationship that took place after graduation and after the student was over eighteen. The Court of Common Pleas granted the School District's request to vacate the award, finding that even if the actual sexual encounter did not take place until after graduation the District had established that the teacher's conduct posed an unacceptable risk of undermining the School's legitimate policies, and that the award reinstating the teacher was contrary to public policy.

The Commonwealth Court reversed (here). It found that the lower court had improperly ignored the arbitrator's findings of fact and intruded into the arbitrator's authority to weigh the appropriate penalty. The Supreme Court has now denied the District's Petition for allowance to Appeal.

Sunday, September 10, 2017

Arbitration panel upholds denial of recall because of 13 year old conviction

A Public Law Board including Neutral Joan Parker has rejected a claim that CSX Transportation improperly denied recall in 2014 to a furloughed employee because of his arrest and plea of guilty to a charge of involuntary manslaughter approximately 13 years earlier.

Claimant was furloughed on October 16, 2001. On October 10, 2001, while off duty, he had pointed a gun at another employee and the gun discharged, killing the other individual. Grievant was arrested and subsequently pled guilty. He was released on time served (June 1. 2002 through August 6, 2002) and was required to complete six years probation.

Claimant received a letter dated September 18, 2014, informing his that he was being recalled, subject to a medical exam and a background screening. After completion of the background screening he was charged with violating CSX's rules concerning "Concealment of facts under investigation" and "Criminal conduct that may damage CSX's reputation or that endangers CSX property , employees, customers, or the public." The Union (IBEW) challenged that decision arguing that CSX had waited thirteen years to charge the claimant despite being aware of the incident in 2001, and claiming  that the employer's decision was an abuse of discretion.

The Board found that claimant was properly found to be guilty of CSX's charges, and that dismissal was the appropriate penalty. It found no evidence that CSX had been aware of the incident in 2001, but that in any event "even had the Carrier been aware of the events of 2001, it would have had no cause to bring charges against Claimant in relation to those events unless and until he sought to be returned to service -- something he might not have done after being furloughed, so that the matter would never have arisen." The Board also found that Claimant had failed to timely disclose his earlier arrest and conviction. It observed:

Claimant acknowledged that he understood the recall letter that  he had received, and thus knew that a background screening would be performed prior to his return to service. Moreover, he called Manager Tim Hill after learning that he had passed the medical examination, and was told by Hill that he had to pass a background screening.  An employee with a felony conviction - especially one involving a firearm and the death of another person - must as a matter of common sense, suspect that he will not pass such a background screening. As Claimant acknowledged  he did not ask Hill any questions. That Claimant did not discuss his criminal conviction with Hill is both telling and, the Board finds, in itself a violation of Rule 104.4's prohibition of concealing facts under investigation. 

The Board's decision can be found here.

Sunday, August 27, 2017

Arbitrator addresses conflict between California Kin Care law and collective bargaining agreement

A dispute arose between Southwest Airlines and TWU concerning the relationship between their CBA and the provisions of California's Kin Care law. Kin Care allows an employee to use up to one half of accrued sick leave to care for an eligible family member.

Grievant, a ramp agent, was scheduled to work his regular 1:30 pm to 10 pm shift on January 8, 2017. He had also agreed to work an earlier shift the same day from  5:15 am to 1:30 pm. He called in sick before starting work that day to take care of his ill son. It was undisputed that the reason for this absence fell within the terms of Kin Care.

The dispute between the parties arose from the Company's decision to treat all of grievant's missed time (i.e. both his regular shift and the additional shift, a total of 15.7 hours) as covered by Kin Care and to pay out sick leave accordingly.The Union claimed that the CBA limited sick leave to a maximum of 8 hours in any one day and sought to have the remaining hours returned to grievant's sick leave bank.

The dispute was submitted to Arbitrator Joshua Javits for resolution.

The Union argued that the payout exceeded the contractual maximum and was an attempt by the Company to improperly force grievant to exhaust his sick leave as quickly as possible. It maintained that an employee should be permitted to choose how much Kin Care leave he/she wanted to use during any period of absence. Southwest argued that it was required by statute to treat all work scheduled but missed as covered by Kin Care notwithstanding the contractual maximum. It noted that if it didn't cover all of the hours missed, any hours not covered by Kin Care would be treated under the CBA as unprotected and would subject grievant to being charged one disciplinary point for an absence other than for his own illness. It argued that Kin Care protections were not waivable by a collective bargaining agreement.

In reaching his decision, Arbitrator Javits noted initially that an arbitrator is ordinarily limited to considering only the language of the CBA. Here, however, the parties' agreement anticipated that any particular provision might be rendered invalid by subsequent legislation and that in that case the relevant provision should be deemed invalid. He noted:

The prevailing view among Arbitrators is that external laws and legislation that are not expressly incorporated by reference in to the CBA should not be treated as part of the parties’ CBA. Arbitration is generally considered a forum for interpreting and applying the contract - not a forum for enforcing statutory rights. Only in the most limited circumstances would the Arbitrator be prepared to void a contractual term in order to incorporate external legislation. To strike down a contractual provision, the Arbitrator would require compelling evidence that the external legislation was entirely incompatible with the parties’ contract. The burden of proof for declaring a contract term invalid in this way is high and is not easily met, the Arbitrator believes.

Accordingly he turned to the question of the interpretation and potential application of the Kin Care statute. Arbitrator Javits noted that there was a clear disagreement between the parties concerning the Kin Care requirements. The case also presented the somewhat unusual situation in which the grievant argued that he did not wish to take advantage of all that Kin Care may provide.

Arbitrator Javits concluded that Southwest had not presented the "compelling evidence " he deemed necessary to deny the grievance. While the Company had presented its own interpretation of what the law required he noted:

...this is only the Company's interpretation of how the Kin Care law is to be applied; there is no ruling from a state court/agency that definitively provides that the Company must enforce the Kin Care law in this manner. Absent such a ruling, the Arbitrator believes that he is compelled to follow the clear and express language of the parties’ CBA. For Arbitrators to apply potentially 50 different state laws to a nationwide contract would result in a chaotic situation, one that was never contemplated by the parties, the Arbitrator finds.

Accordingly, Arbitrator Javits agreed with the Union that the explicit language of the cba that "the maximum for which an employee will be paid [in sick leave] is one shift per day" should prevail.

The Arbitrator's award can be found here.     

Update:  Arbitrator Javits has granted (here) the employer's request for a stay of his decision pending receipt of guidance to the parties from California's Division of Labor Standards Enforcement. 

Sunday, August 20, 2017

Verizon ordered to arbitrate benefits claim

A District Court in Pennsylvania has ordered Verizon to arbitrate a grievance filed by Communications Workers of America claiming that the Company breached a contractual prohibition on "Making any changes in the Verizon Pension Plan or the Verizon Sickness and Accident Disability Benefit Plan which would reduce or diminish he benefits or privileges provided by the Plans for employees within the bargaining unit without agreement of the Union." Communications Workers of America, AFL-CIO, District 2-13 v. Verizon Pennsylvania, LLC

The Union asserted that Verizon had discontinued a practice of providing healthcare and life insurance benefits to terminated employees who were receiving accident disability benefits. According to the Union, per the applicable plan an employee terminated while receiving benefits is eligible to continue to receive benefits until the employee is no longer certified as disabled or has been paid the maximum amount of benefits under the plan.

The cba provides:

16.01 During the life of this Agreement the Company will not:

16.011 Make any change in the Verizon Pension Plan or the Verizon Sickness and Accident Disability Benefit Plan which would reduce or diminish the benefits or privileges provided by the Plans for employees within the bargaining unit without the agreement of the Union.

* * *

16.02 A claim that this Article has been violated may be submitted to arbitration under Article 10. A claim of an employee within the bargaining unit that they have been deprived of any benefits or privileges to which they are entitled under the Plans may be processed as a grievance under the provisions of Article 10, but shall not be subject to arbitration. However, nothing in this Agreement shall be construed to subject the provisions of the Plans or their administration or the terms of a proposed change to arbitration.

The Union's grievance claimed a violation of Article 16.011. Verizon refused to arbitrate, claiming that the grievance was a claim for benefits, expressly excluded from arbitration by the last sentence of Article 16.02. The Union filed a Petition to Compel Arbitration. The Court summarized the dispute before it:

At issue between the Union and Verizon is § 16.02 of the CBA. Verizon claims the Union's grievance is excluded from arbitration under the second and third sentences of § 16.02 because the grievance is merely a claim for benefits, which would require plan interpretation. ... Thus, Verizon argues that the remedy for former Verizon employees who claim to be denied benefits is the claims and appeals procedure outlined in SADBP § 9.1. ... In contrast, the Union contends that its grievance is arbitrable under the first sentence of § 16.02. ... The Union further takes issue with Verizon's construction and interpretation of § 16.02, claiming that Verizon's interpretation fails to take in account the distinction between claims being made by the Union on behalf of its members, and claims by individual members that they have been denied benefits.

Agreeing with the Union, the Court concluded that the dispute, as framed by the Union, was properly subject to arbitration. It noted:

...§ 16.02 makes a distinction between claims brought by the Union on a unit-wide basis, and claims by an individual that he or she has been denied benefits. The latter is not arbitrable because the second sentence of § 16.02 expressly carves it out of arbitration, stating that "[a] claim of an employee within the bargaining unit that they have been deprived of any benefits or privileges to which they are entitled under the Plans . . . shall not be subject to arbitration." (CBA § 16.02) (emphasis added). The second sentence of § 16.02 specifically states that a claim of an employee that he or she has been denied benefits is not subject to arbitration. Contrary to Verizon's interpretation, however, it does not necessarily follow that a claim by the Union on behalf of its bargaining members that there has been a reduction or diminishment in benefits is excluded from arbitration. If that were the case, then any claimed reduction in benefits would be excluded from arbitration and the second sentence of § 16.02 would swallow the first. In this case, we have a labor union that has made a claim of a violation of § 16.011 on behalf of all of its members. No other provision in the CBA or Article 16 forecloses that type of subject matter from arbitration. Accordingly, the Union's grievance is not excluded from the scope of the arbitration clause. [Footnotes omitted]

Finding no other "forceful evidence" that the parties intended to exclude grievances of this type from arbitration, and noting that it was making no decision on the merits of the Union's claim, the Court granted the Union's request to compel arbitration.

Sunday, August 13, 2017

Quick Hits - Deferral, neutrality, "flagrant misconduct" and excessive force

Court upholds NLRB’s refusal to defer to arbitrator

The Eight Circuit has affirmed an NLRB decision (available here) refusing to defer to an arbitrator’s award (here).  Cooper Tire had dismissed Anthony Runnion for his conduct on a picket line. Runnion had shouted racially charged comments to individuals crossing the picket line. Arbitrator Roger Williams upheld the termination, finding the conduct “. . . would have been serious misconduct in any context, but in the context of the picket line, where there was a genuine possibility of violence, his comments were even more serious.”  The Board concurred with the ALJ, finding the award “clearly repugnant” to the NLRA. Enforcing the Board’s decision, the Circuit Court rejected Cooper’s contention that the arbitrator’s finding of just cause demonstrated that the employee had been dismissed for “cause" within the meaning of the NLRA, and concluded that the Board acted within its discretion in refusing to defer to the award. Dissenting, Judge Beam would have “peremptorily reversed” the Board, noting:

When the Board unleashed its "repugnant to the purposes and policies of the Act" mandate in derogation of the arbitrator's rulings, it mentions not a single word of legislative language. That is understandable because there is none. Such purposes and policies are wholly of the Board's fabrication, done so to undergird, presumably, any whim and caprice that the Board may want to employ in arriving at its various conclusions. 

The Court’s opinion, and Judge Beam’s dissent, can be found here.

Arbitrability of neutrality dispute to be decided by arbitrator, not court

UNITE HERE and Shingle Springs Band of Miwok Indians were parties to a neutrality agreement concerning union organizing at the tribe’s Red Hawk Casino. The agreement provided for arbitration of disputes over “the interpretation and application” of the agreement. When two employees were dismissed, UNITE HERE sought to arbitrate their terminations, asserting that they had been dismissed because of the organizing activities in violation of the neutrality agreement. Refusing to arbitrate, the Tribe sought declaratory relief in the District Court. The Union sought an order compelling arbitration. 

Relying largely on the Ninth Circuit’s decision in Desert Palace, the District Court granted the Union’s request and ordered arbitration. On the arbitrability question the Court held:

Like the arbitration clause in Desert Palace, Section 10 of the MOA provides for arbitration of "any disputes over the interpretation or application of" the MOA (except for unresolved disputes regarding collective bargaining negotiations, which are not relevant here). (ECF No. 2 Ex. A at 7.) Thus, the parties have reserved for the arbitrator the question of arbitrability. The Court is "divested of [its] authority and [the] arbitrator will decide in the first instance whether [this] dispute is arbitrable." Desert Palace, 94 F.3d at 1310.

The Court dismissed the tribe's request for declaratory relief.

The Court’s opinions can be found here and here.

Court finds arbitrator’s award "clearly contrary" to the weight of the evidence, upholds termination 

The MO Court of Appeals affirmed a lower court’s refusal to enforce an arbitrator’s award reinstating an Assistant County Prosecutor accused of misleading the court and failing to meet his discovery obligations. International Association of Firefighters, Local 42 v. Jackson County  In overturning the termination, the arbitrator found that while grievant had committed “very serious” misconduct, termination was too severe because of the absence of any prior discipline and what he found was an “anything goes” atmosphere in the prosecutor’s office.

 After the award, and as allowed under the parties cba, the County Prosecutor and County Executive reviewed and reversed the award and upheld the termination. Affirming that decision the Court concluded:

When Mitchell intentionally and repeatedly lied to the court, he violated fundamental and obvious standards of professional conduct. Mitchell's misconduct was a "self-evident case[ ] of exceptional severity"; under the arbitrator's own analysis, progressive discipline and notice requirements were inapplicable to this egregious misconduct. The history of prior attorney discipline — or lack of discipline — in the Prosecutor's Office to which the arbitrator referred was insufficient to absolve Mitchell of responsibility for his flagrant misconduct, or immunize him from the appropriate consequences for that misconduct.
Given the arbitrator's findings that Mitchell intentionally and repeatedly lied to the court, his conclusion that Mitchell's immediate discharge was unwarranted was "clearly contrary to the weight of the evidence, viewed in its entirety." The Prosecuting Attorney and County Executive acted within their authority under Article VI, § 3(C) of the collective bargaining agreement in modifying the arbitrator's decision, and reinstating Mitchell's discharge.

Update: The Court of Appeals has issued a similar ruling involving another prosecutor International Association of Firefighters, Local Union No. 42 v. Jackson County

Correction Officer used excessive force, but termination too severe

  A Cuyahoga County Corrections Officer was dismissed for allegedly using excessive force against inmates on two separate occasions.  Arbitrator Robert Stein concluded that in the first incident there were mitigating factors that explained, but did not excuse, the officer's conduct. Regarding the second incident, occurring two days later, Arbitrator Stein found grievant's use of force "clearly excessive" and found that grievant had unnecessarily escalated the situation. Reviewing grievant's prior history the Arbitrator noted that while  a prior incident in which grievant had used uneccesary force raised a question of whether progressive discipline would correct grievant's behavior, his  recent performance appraisals were favorable. Each of these factors had to be weighed in determining the level of discipline that would be appropriate. Moreover,  Arbitrator Stein observed:

Finally, a determination in this matter cannot be done in a vacuum. It  also need to be tempered by the current mores of our society and the very real level of scrutiny that law enforcement and public employers face, which includes corrections. Over the past several years the media has frequently reported on examples of what is alleged and at times proven to be the use of excessive force in situations involving the treatment of those stopped by law enforcement, arrested and in held custody. While many of these reported situations only deal with a small fraction of interactions between law enforcement and the public, and are often inaccurately reported upon and become the subject of considerable distortions, some are real examples of abuse and result in public employers having to bear considerable liability for assuring their treatment of all people in their custody.

Weighing all of these factors, Arbitrator Stein concluded that while discipline was appropriate grievant should be reinstated without back pay. The arbitrator's award can be found here.

Sunday, August 6, 2017

Marriott challenges arbitrator's award on applicability of neutrality/card check agreement, impact of successorship language

Marriott International and Starwood Hotels & Resorts Worldwide were both members of a multi-employer Hotel Association and were  bound by an Industry-Wide Agreement (IWA) between the Association and the New York Hotel and Motel Trades Council.

During negotiations for the IWA effective July 1, 2012, the parties agreed to modify the impact of an earlier decision concerning the scope of the neutrality/card check provisions of the IWA. As set forth in a Stipulation of Facts:

During the negotiations for the 2012 IWA, the Union and the Hotel Assn. Bargaining Group Hotels  agreed that, in return for the Union not insisting on the unlimited temporal and geographic scope of the Parsippany Award, the Union and respective hotel chains would separately negotiate for certain hotels to be immediately covered by card check neutrality organizing under Article 60/Addendum IV even though the managerial, ownership and control interest preceded February 3rd 2012.

Both Marriott and Starwood reached agreements with the Union  identifying certain hotels that would be immediately subject to the card check/neutrality proven of the IWA. Per the Starwood side agreement, certain other of its hotels, including the W Hoboken and the Westin Jersey City Newport, would not be subject to neutrality/card check.

In September of 2016 Marriott completed its acquisition of Starwood. Thereafter, the Union sought to organize the W Hoboken and The Westin Jersey City under the card check/neutrality provisions of the IWA and the Marriott side agreement. The Union claimed that these hotels had been "acquired" by Marriott after February 3, 2012 and that they were therefore subject to neutrality/card check. In contrast, Marriott maintained that it acquired Starwood in a stock transfer, that Starwood continued to exist, albeit as an indirect wholly owned subsidiary of Marriott, and that all of Starwood's labor agreements remained in place. It pointed to the successorship  successorship language of the IWA which provided:

This Agreement shall be binding upon the successors and assigns of the parties hereto, and no provisions, terms, or obligations herein contained shall be affected, modified, altered, or changed in any respect whatsoever by the consolidation, merger, sale, transfer, or assignment of either party hereto or affected, modified, altered or changed in any respect whatsoever by any change any kind in the legal status, ownership, or management of either party hereto....

 and the related provision of the Starwood side agreement.

The dispute was submitted to Impartial  Chairperson Elliott Shriftman for resolution. Chairperson Shriftman concluded:

It is beyond,  or should be beyond, debate, that if the only agreements to be considered by the Chairperson are the 2012 IWA and the May 29, 2015 Side Agreement between Marriott and the Union, Marriott's acquisition of any hotel, not excluded from the latter, if falling within the geographic contemplated by the IWA, and occurring after February 3. 2012 would give the Union the absolute right to expect Marriott to comply with the card check neutrality provisions of the IWA as regards the W Hoboken and the Westin Jersey City Newport. This is made abundantly clear in Article 60(B0(1) of the IWA and Addendum IV.  Marriott, in fact, acquired those two hotels after February 3, 2012.

Responding to Marriott's argument regarding the successorship provision of the Starwood agreement, Chairperson Shriftman concluded:

The successors and assigns clause in the Starwood Agreement was plainly designed to benefit the Union and bind any purchaser of the named hotels subject to Article 60 and addendum IV should they be sold prior to the Union's invocation of those provisions. It was not intended to create an exclusion to the benefit of Starwood or any subsequent owner. These words, drawn from the Starwood Agreement, make plain that they were not to be enjoyed by a subsequent buyer. "...based on Starwood's ownership, management or control interest therein which predates February 3, 2012."

Accordingly, the  Chairperson directed Marriott to "promptly comply" with the Union's card check demands

Marriott has sought to vacate the award, claiming, inter alia, that the Chairperson has "evidenced a manifest disregard" for the terms if the Agreement, ignored its plain language, is contrary to public policy, and fails to draw its essence from the agreement.

Marriott's complaint, and the Award of Independent Chairperson Shriftman, can be found here.

Sunday, July 30, 2017

Assignment to light duty and seniority issues - Court upholds arbitrator's award

The PA Commonwealth Court has upheld an award of Arbitrator Mark McCloskey in connection with a grievance filed by the Allegheny County Prison Employees Independent Union against Allegheny County.

The issue before Arbitrator McCloskey was whether the County violated the seniority provisions of the cba when it assigned an employee to light duty and gave him work schedules and pass days that had been denied to more senior employees.

Because of a work related injury, Samuel Pastore was assigned to light duty positions, first as a security camera monitor and later in Internal Affairs. He was designated as a "Floater" and was granted an ongoing Monday through Friday 7:00 am to 3:30 shift with Saturday and Sunday as his "pass days" or days off. The dispute in this case arose when the Union claimed that Pastore's light duty assignment did not entitle him to bypass the bidding process.

The County argued that it retained the managerial prerogative to create light duty assignments, and that this right included "those tangential terms and conditions of employment which might otherwise constitute bargainable items ...." While agreeing that the creation of light duty assignments were a managerial prerogative, the Union asserted that shift assignments were still subject to the cba.

Arbitrator McCloskey sustained the grievance, concluding that the County could not award Pastore work schedules or pass days that had been denied to more senior employees.  The County sought to vacate the award, but the trial court upheld it in all respects. The County appealed to the Commonwealth Court which has now affirmed.

Applying the "essence test" the Court concluded :

The County exercised its managerial prerogative and assigned Pastore to a light duty position; Pastore was designated as a Floater while holding that position, and that status did not change.Pursuant to the CBA, officers who are Floaters express a preference for shift and pass days based on seniority. Because Article XXX provides for correctional officers in a light duty status to express their choice of shift and pass days according to their seniority and because Article XXVIII allows Floaters to express their preference for pass days which are awarded based on seniority, the CBA arguably addresses the situation of assigning shift and pass days to a Floater on light duty and subjects that situation to the seniority bidding process. Thus, the Arbitrator's Award, which relies on these provisions, is rationally derived from the language of the CBA. Moreover, the Arbitrator's Award does not direct the County to cease assigning Pastore the light duty position, nor does it necessarily eliminate Pastore's Saturday/Sunday pass days. Rather, the Award directs the County to cease assigning Pastore work schedules or pass days while denying those days to more senior members. The Arbitrator's interpretation can be reconciled with the language of the CBA, and it is not the role of this Court to override that determination by reinterpreting the CBA. Accordingly, we may not vacate the Award. [footnote omitted]

The Court's decision can be found here.

Sunday, July 23, 2017

Two recent cases discuss the appropriate standard of proof, progressive discipline and just cause

Two recent cases, reported by Minnesota's Bureau of Mediation Services, address the question of the appropriate standard of proof in a discharge case.

In Hennepin Healthcare System, Inc., grievant had been dismissed from his position as a Protection Officer in the Hennepin County Medical Center, allegedly for striking a patient. At the arbitration hearing, the Union argued that the Medical Center should be held to a "clear and convincing evidence" standard in its effort to prove just cause.

Arbitrator David S. Paull agreed, noting:

Since the issue is the propriety of Mr. Williams’ discharge, the appropriate standard of proof is, as the Union suggests, clear and convincing evidence. Pursuant to this standard, the County is obligated to supply sufficient proof to show that the existence of its assertions of fact is highly probable. The standard is equally applicable to the Union with regard to its affirmative allegations.

Finding that the Medical Center had met this burden is establishing the facts of the incident, Arbitrator Paull turned to the appropriateness of the penalty. While recognizing that
the parties had agreed on a system of progressive discipline, Arbitrator Paull nevertheless found the facts sufficient to warrant an exception to progressive discipline if the discipline otherwise met the standard of just cause. Concluding that it did, he observed:

First, the nature of the conduct was both inappropriate and flagrant. In striking the patient while all of his limbs were in restraints, Mr. Williams clearly violated the applicable rules and his training. There is sufficient evidence to connect Mr. Williams’ behavior with his state of mind. The record shows that Mr. Williams was angry about being called in on that afternoon. It is reasonable to conclude that he permitted his anger, at least in some substantial degree, to dictate his actions.
Second, the failure of Mr. Williams to admit to striking the patient does little to advance his case. The essence of a penalty reduction in a discharge case is the likelihood that the employee will recognize his error and take steps to correct it. The chance of this occurring is lessened, however, in cases in which the employee refuses to admit to the mistake.

Arbitrator Paull found grievant's failure to take responsibility for his actions, his past demonstrations of temper and the nature of the act outweighed his otherwise good record and, accordingly, denied the grievance.

In Minnesota Department of Corrections the grievant, a corrections officer, was dismissed for allegedly assaulting, while off duty, a person engaged in an argument with his sister. Grievant was charged with assault but was subsequently acquitted of this charge.

At the arbitration the Union sought to have the Arbitrator impose a "clear and convincing" standard of proof on the County, both because it involved a termination and also because it involved claims of criminal acts. Arbitrator A. Ray McCoy accepted this position, concluding:

The Union argues that the Employer should be required to meet the clear and convincing standard of proof that it had just cause to terminate the Grievant. The arbitrator believes that a clear and convincing standard of proof is appropriate. Imposition of the clear and convincing standard is often applied in recognition that discharge is the ultimate penalty that can be issued by an employer. Discharge, in an immediate and fundamental way, throws the employee’s life into disarray including future employment prospects. The arbitrator accepts that the Union wishes to impose a very onerous burden on the Employer to make sure the Employer resorts to discharge only in cases where the evidence is clear that the employee engaged in misconduct.

Notwithstanding this burden, however, Arbitrator McCoy found that the DOC had established just cause for dismissal. Initially he noted that the acquittal of the criminal charges did not translate to an absence of just cause. While there may have been reasonable doubt of defendant's criminal responsibility, the Union had not effectively countered the DOC's proof in the arbitration hearing. He wrote:

The arbitrator’s focus, however, was on determining whether the Employer provided clear and convincing evidence that it satisfied its’ contractual “just cause” requirement. In doing so, the arbitrator took great pains to identify any evidence proffered by the Union that demonstrated that the Employer’s evidence should not be relied upon. In other words, casting doubt or blaming someone else doesn’t have the same level of importance in the arbitral proceeding as it might in a criminal one. It was incumbent upon the Union to do more than merely cast doubt or blame others. While it is the Employer’s burden to prove just cause, the Union cannot simply sit back and say our version of the events is more believable. The Union will need to demonstrate that the evidence put forth at the hearing by the Employer is simply inadequate, unreliable, or just plain false.

Finding nothing in grievant's work history to mitigate the penalty of termination, and noting instead prior instances of untruthfulness, Arbitrator McCoy denied the grievance.

Similar issues are addressed in Conflicting views on the appropriate standard of proof in termination cases, Acquitted of criminal charges, but just cause for dismissal, Off duty misconduct, just cause, burden of proof and leniency, Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer, and Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension

Sunday, July 16, 2017

Choke holds, use of force, public policy and arbitration

The Massachusetts Supreme Judicial Court has rejected an effort by the City of Boston to set aside an arbitrator's award reinstating a police officer who had been dismissed for allegedly using excessive force and then lying about it during an internal investigation.  City of Boston v. Boston Police Patrolmen's Association

On March 16, 2009, Officers David Williams and Diep Nguyen were dispatched to a the scene of a minor accident. While the officers were dealing with the situation, Michael O'Brien, one of the individuals involved, began filming the interaction and allegedly refused instructions to get out of the street. Officer Nguyen decided to arrest O'Brien who struggled and resisted efforts to handcuff him. Officer Williams came to the aid of his partner and "tackled" O'Brien, forcing  him to the ground using what he described as a "semi-bear hold." Officer Nguyen described the method used as a "choke hold." O'Brien was charged with resisting arrest, disturbing the peace and assault and battery on a police officer.

On March 19, 2009 O'Brien filed a complaint with the internal affairs division. The complaint was assigned to an officer but little investigation was done and, in May, O'Brien's counsel withdrew the complaint. O'Brien filed a lawsuit in September alleging unreasonable use of force, unconstitutional arrest and assault and battery. The following day counsel filed another internal affairs complaint. In January of 2010, O'Brien's counsel complained of inaction on the complaint and in April 2010, an initial interview of the officers involved took place. In February 2011Williams was placed on administrative leave. A second round of IAD interviews took place in March 2011, and in June 2011. Nguyen was exonerated but two specifications were issued against Williams. The specification alleged that Williams had engaged in the unreasonable use of force and was untruthful during the internal affairs investigation. Trial board hearings were held in November and December 2011 and on January 18, 2012 Willams' employment with the Department was terminated.  The  termination was grieved and on June 20, 2013 Arbitrator Michael Ryan issued an award upholding the grievance. (here)

Arbitrator Ryan, observing that the case ultimately turned primarily on credibility issues, found that the City had not established that Williams had used excessive force, even if he had used a choke hold. He found several factors undermined O'Brien's credibility, i.e. his intoxication, his concern for the impact of the incident on his future employment prospects, and the absence of objective physical evidence supporting his version of events.

Arbitrator Ryan noted further that "choke holds" were not specifically prohibited by the Department's use of force policy. While finding Williams conduct aggressive, he concluded that it was warranted by the circumstances. Accordingly, he concluded that the City had establish neither that Williams had not used excessive force nor that he had been untruthful during the investigation.

The City sought to set aside the award, but the Superior Court rejected this effort. The Mass. Supreme Judicial Court granted direct review and affirmed.

The Court held first that the arbitrator had not exceeded his authority by intruding on the nondelegable powers of the police commissioner to discipline officers. It found no precedent suggesting that  nondelegable matters extended to "core matters of discipline and discharge" and that the parties agreement to arbitrate disputes concerning discipline left the issue squarely within the arbitrator's authority. It next rejected the City's claim that the award was contrary to public policy. While recognizing that public policy clearly prohibited police use of excessive force, the Court noted that, in light of the facts as found by the arbitrator, there was no violation of public policy in this case. Given the deferential standard of review of arbitration awards, the arbitrator's findings that choke holds were not specifically prohibited by the Department's policies, and his conclusion that Officer Williams use of force was reasonable in the circumstances, the Court concluded that the award must be upheld. It noted, however, that "[h]ad the city prohibited choke holds as excessive force, an arbitrator who found a choke hold reasonable would have exceeded his authority." The Court also noted that the extended delay in the Department's investigation of O'Brien's claim of excessive force undermined the City's claim that public policy compelled termination.

In a concluding section describing what it called "prospective guidance," the Court observed:

First, it is incumbent on the city to clarify its own policies with respect to excessive force and specifically choke holds if it does not wish in the future to relinquish interpretive control of that term.
Second, the city must investigate allegations of excessive force with substantially more alacrity than was evidenced here. Pursuant to its own existing rules, the department owes a duty, both to the public and to its own officers, to investigate allegations of excessive force thoroughly and promptly. As with the tension between a choke hold's dangerousness and the commissioner's desire to retain discretionary review of their use, it is difficult to reconcile the department's position that an officer's use of a choke hold requires termination with its protracted inaction in this case. [footnote omitted]

The Court also expressed concern about the impact of its decision, but ultimately suggested that any solution was a legislative one:

Last, we are troubled by the prospect that any use of force not explicitly prohibited by a rule of conduct is essentially unreviewable. It is difficult to fathom why we elevate the values of "expediency" and "judicial economy" so high as to eclipse the substantive rights of citizens who have no seat at the bargaining table. We recognize, of course, that public employers may or may not choose to adopt rules for the protection of the public from the excessive use of force. Without the benefit of such rules, however, arbitrators remain free to find reasonable any level of force that does not explicitly require termination. Absent legislative authority for a broader review of arbitration decisions, we are constrained in our ability to review the use of excessive force by public safety officials.

Sunday, July 9, 2017

Confirming arbitration awards - mootness, compliance, contempt

The Seventh Circuit has rejected an appeal by Hyatt Corp. from an order confirming two arbitration awards. The awards found that Hyatt supervisors had improperly performed bargaining unit work and ordered Hyatt to cease and desist from such violations of the cba. Unite Here Local 1 v. Hyatt Corp.

The Union  had sought an order confirming the two awards. Hyatt had not timely challenged the awards and argued that it had complied with the awards and that the Union was improperly seeking prospective relief. The District Court (here) found the argument unpersuasive. Distinguishing prior Seventh Circuit cases, the court found that in this case the Union had sought and received prospective relief from the arbitrators and that the Union was not seeking to bypass future arbitrations for similar future claims

The Circuit has affirmed that decision. (The oral arguments before the court can be heard here). The Court summarized the issue before it, and Hyatt's argument, as follows:

When a party asks that an award be enforced prospectively, it is typically asking the court to apply the arbitrator's holding to a later dispute that has not been submitted to arbitration. Often the specific relief requested is the entry of declaratory or injunctive relief that dictates the resolution of the new dispute in harmony with the arbitrator's prior ruling. E.g., Honeywell, supra, 522 F.2d at 1224-25. That type of relief places the court in the position of regulating the parties' conduct directly in lieu of having a second arbitrator resolve the merits of the later dispute. The prospective enforcement of arbitration awards is thus a matter that we approach with great caution, as evidenced by our decisions in Honeywell and Inland Steel Coal. See Honeywell, 522 F.2d at 1225 (noting extraordinary nature of request to prospectively enforce prior arbitration award to unarbitrated disputes); Inland Steel, 876 F.2d at 1293-94 (surveying high bars other circuits have posted to prospective enforcement); see also Consol. Coal Co. v. United Mine Workers of Am., Dist. 12, Local Union 1545, 213 F.3d 404, 406 (7th Cir. 2000) ("courts are reluctant to issue labor injunctions"); AG Commc'n Sys. Corp. v. Int'l Bhd. of Elec. Workers, Local Union No. 21, 2005 WL 731026, at *10 n.7 (N.D. Ill. Mar. 28, 2005) (noting that "AGCS has not pointed to any cases in which the Seventh Circuit has prospectively applied an arbitration award as a bar to future grievances"). Specifically, courts have expressed a concern that prospective enforcement of an arbitration award will effectively nullify the parties' agreement to resolve their disputes by way of arbitration. See Inland Steel Coal, 876 F.2d at 1296; Honeywell, 522 F.2d at 1225.
The premise of Hyatt's challenge to the district court's decision is that confirmation of the Fleischli and Kenis awards will produce that very result, in that confirmation invites the union to bring future disputes under section 56 [of the cba] directly to the court by way of a contempt petition, such that the court will be required to pass on such fact-intensive (and industry-specific) questions as whether there was an emergency justifying hotel managers in performing bargaining-unit work in particular instances—questions of the sort that normally would and should be resolved by an arbitrator. ...

The Court noted however, that the Union's request for relief in this case was "more modest." Union counsel agreed that any future claimed violations must first be submitted to an arbitrator for resolution. Only after an arbitrator had addressed the particular grievance and made necessary fact findings would the union institute contempt proceedings. In light of this concession the Court found its prior decisions distinguishable. Accordingly it found no bar to confirmation of the arbitration awards.

The Court also rejected Hyatt's claim that the dispute was moot. Hyatt asserted that it had not challenged the awards and once the applicable period to do so expired they were final and binding. The Court observed, however, that there remained a number of pending grievances between the parties concerning the interpretation and application of the cba provision restricting supervisory employees from performing bargaining unit work except in emergencies and the existence of these disputes "demonstrates that the parties remain at odds as to what section 56 means and whether Hyatt is complying with the section." The earlier awards are relevant, concluded the court, in that they address what constitutes an emergency and also explicitly require compliance with the contract by means of a cease and desist provision. Confirmation of these awards would give them "teeth" by exposing Hyatt to the possibility of contempt if it did not comply in circumstances sufficiently similar to the resolved by the two arbitrators.

Finding no error on the part of the District Court, and none of the policy concerns it had identified in earlier cases, the Circuit affirmed the lower court's decision.

Sunday, July 2, 2017

Does administrative time off to vote apply to participation in caucuses?

That was the issue before Arbitrator Shyman Das in a case involving the US Postal Service and its three major unions.

The USPS Employee and Labor Relations Manual (ELM) provides:

519.321 Policy

...postal employees  ... who desire to vote or register in any election or in any referendum on a civic matter in their community are excused for a reasonable time for that purpose on a day they are scheduled for work.

The issue before Arbitrator Das was whether this provision applied to local party caucuses during which registered voters express their preference for a candidate to receive their party's nomination for President of the United States.  The particular dispute arose in connection with a Democratic caucus held in Nevada during the 2016 campaign. The Postal Service denied the request of an employee for paid time off to participate.

At the arbitration, USPS asserted that caucuses differ significantly from state level elections run by state governments. A caucus, they argued, was unlike a traditional election in that it required a participant to stay for the duration of the cause and could involve multiple rounds of voting. It also claimed that it had a consistent policy of not granting administrative leave for caucuses.

Rejecting the position of the Postal Service, Arbitrator Das concluded that the language was broad enough to encompass party caucuses. He noted:

The issue in this case is whether the policy expressed in 519.321 and the provision for paid leave therein extends to participation in local party caucuses in which registered voters express their preference for a candidate to receive the party's nomination for President of the United States. The results of such caucuses play a direct role in the selection of delegates who ultimately determine the party's nominee. Participation in such caucuses constitutes "voting" in an "election" and equates to voting in a primary secret ballot election in terms of an employee's "exercise [of] their voting rights." From the standpoint of the policy expressed in 519.321 there is no meaningful basis for distinguishing between voting in a Presidential nomination caucus and in a Presidential primary election for which administrative leave is granted in accordance with the provisions of 519.32.
[footnote omitted]

Arbitrator Das also rejected the Service's assertion of a consistent practice of denying administrative leave for caucuses. He noted that two letters from headquarters to the field articulated that position, but one related to the dispute that was the subject of the grievance, and a second was issued prior to the 2012 election when the Democrats did not hold caucuses. He also noted that in the 2008 election two grievances protesting the denial of administrative leave for caucus were settled on a non-citable basis. The Unions also pointed to two prior regional awards supporting their position which, while not binding, arguably provided guidance for this dispute. In light of all of this, Arbitrator Das concluded that the record was insufficient to support the existence of "any sort of practice or of a consistent policy  known to and acquiesced in by the Unions."

Arbitrator Das' award can be found here.

Monday, June 26, 2017

Politics, police, progressive discipline and just cause

Two officers of the DeFuniak Springs Police department, Officer Richard Boblitt and Sergeant Anthony Kaiser, claimed they were dismissed in retaliation for having supported the Department  Chief's opponent in a municipal election.

The two had been employed by the Department for 17 and 4 years respectively. Both were instrumental in bringing the PBA into the Department in 2010.

The Chief was up for reelection in April 2015. On March 25, 2015 the PBA endorsed the Chief's opponent. On April 2, 2015 several Department employees published a letter in a local newspaper questioning the PBA's endorsement of the Chief's opponent. Also on that date one of the officers who signed the letter filed a complaint against Boblitt and Kaiser alleging racial harassment. An Internal Affairs investigation was initiated on April 8, and the two were notified of the investigation on April 13. The election was held on April 14, and the incumbent Chief prevailed.

On June 2, 2015 the Department notified Boblitt and Kaiser that their employment was being terminated, Boblitt for allegedly having racially harassed the complaining officer and Kaiser for failing to take corrective action. Both grieved their termination and the dispute was submitted to arbitrator Jeanne Charles Wood for resolution.

Largely based on her credibility resolutions and her evaluation of the evidence against the grievants, Arbitrator Wood found the termination of the two not supported by just cause. Regarding the Union's claim that that the terminations were part of a "conspiracy" relating to the reelection of the Chief, and the City's claim that the terminations were compelled by its obligations under Title VII, the Arbitrator noted:

So, the question remains: Why would [the complaining officer] file the complaint when he did? The Union contends that it was part of a conspiracy relating to the election of Chief Weeks whose opponent was supported by the Union. I make no findings regarding this theory. It is, however, concluded that based on the totality of the circumstances present here, Boblitt's comments were not so severe or pervasive too alter the terms and conditions of [the complaining officer's] employment. That being the case, the City has failed to prove that Boblitt engaged in unlawful racial harassment in violation of Title VII. It follows then that Kaiser, was not negligent in failing to report or take corrective action in connection with racially discriminatory harassment in violation of Title VII.

Arbitrator Woods did find, however, that certain conduct of the grievants was contrary to Department policy, even if not severe enough to constitute unlawful harassment. Observing that police officers are held to a higher standard than other employees, and that "use of potentially racially offensive language and clearly inappropriate name calling in reference to a co-worker's national origin is serious enough to warrant a suspension." Reducing the terminations to five day suspensions, Arbitrator Wood noted:

Progressive discipline is an element of the just cause doctrine. The rationale for using a progressive discipline system is that both the employer and the employee "benefit when an employee can be rehabilitated and retained as a productive member of the work force. ..." [footnote omitted]

Finding no evidence that grievants' conduct could not be corrected by discipline less than termination, and also finding some evidence of disparate treatment, Arbitrator Wood ordered that grievants be reinstated subject to the five day suspensions.

Arbitrator Wood's award can be found here.

Sunday, June 18, 2017

Letter of Reprimand and recording of classes didn't violate university professor's academic freedom

Arbitrator Thomas W. Young issued an award in a dispute between the University of Central Florida and one of its professors. The grievant had been employed by the University for 15 years without discipline in his record. At some point, the University conducted an investigation of a series of incidents involving grievant and his students. The investigation was conducted by a team including the University's Assistant Director EOAA, Title IX Coordinator, The Director of Compliance and Ethics, and a Senior Compliance Analyst. That investigation culminated in a report, finding that while grievant's conduct did not constitute sexual harassment under applicable law and policies, grievant "has a long standing pattern of hostility towards women and ... he lacks the ability to conduct himself with civility and professionalism in the classroom and the office."

In response to the report, the Chair of grievant's Department issued a Letter of Reprimand. The letter incorporated ten incidents expressed in the report and admonished grievant to avoid certain behaviors in the future. These behaviors included ceasing any stories or anecdotes which suggested to students that they cannot report complaints about him to the University, a prohibition on profanity directed at students, sexist language in the classroom and discriminatory behavior in the classroom or office.  The Letter also advised grievant that his classes would be recorded and reviewed for the Summer and Fall terms.

A grievance was filed over the Letter and related restrictions. Among the professor's claims in the grievance process was an assertion that the University's action restricted "the spirit of intellectual exchange in the classroom" and violated his academic freedom as guaranteed by the cba. That agreement provided:

Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research, and to publish the results of that research. Consistent with the exercise of academic responsibility, employees shall have freedom to present and discuss their own academic subjects, frankly and forthrightly, without fear of censorship, and to select instructional materials and determine grades in accordance with the University policies. Objective and skillful exposition of such subject matter, including the acknowledgment of a variety of scholarly opinions, is the duty of every such employee. Faculty are also free to address any matter of institutional policy or action. As individuals, employees are free to express their opinions to the larger community on any matter of social, political economic, or other public interest, without institutional discipline or restraint due to the content of those messages. Unless specifically authorized by the administration, employees’ opinions do not reflect the policies or official positions of the University of Central Florida.

 Grievant maintained that the conditions set forth in the Letter of Reprimand and the decision to record his lectures limited his ability to freely debate and discuss since he did not know how the video of his teaching would be used or who would be viewing it.

Arbitrator Young rejected these claims. Concerning the restrictions contained in the Letter he concluded:

There is nothing in the 6 admonitions, or anywhere else in the Letter of Reprimand, that would require Grievant to alter course content or restrict "the spirit of intellectual exchange in the classroom." Specifically, there is no record evidence that the Letter of Reprimand required or even suggested that Grievant stop teaching his classes using the George Carlin Pacifica monologue. To the contrary, testimony from Beckman at hearing is instructive on this point. Beckman was asked, "[A]t any time, through this document [Letter of Reprimand] do you direct any faculty member to actually alter course content in terms of the delivery of their academic instruction?" Beckman responded:

In my five years as chair I have never once requested a faculty member change course content, change course delivery, change what chapters they’re assigning in a book, what they’re not assigning in a book; . . .

Rather than alter course content, the record instead establishes that the admonitions address Grievant's use of profanity and vulgarity and discriminatory treatment directed at students in his classroom. The Investigative Report establishes that the referenced profanity, vulgarity and discriminatory treatment were not germane to his course material therefore not protected pursuant to section 5.2 of the CBA.

Concerning the requirement that his classes be recorded, Arbitrator Young noted that Grievant did not object to random observation of his classroom and concluded that failed to explain why monitoring by video would chill "the opportunity for open discourse, whereas monitoring by a human being would not."

The Arbitrator found the restrictions contained in the Reprimand were narrowly tailored to prevent a breach of grievant's academic freedom rights and determined that the recording of classes was not imposed to alter course content but simply to ensure compliance with the restrictions contained in the Letter of Reprimand.

Arbitrator Young's award can be found here.

Sunday, June 11, 2017

Arbitrator overturns termination of Miami police officer for invocation of Fifth Amendment rights

Arbitrator Donald Spero has issued an award in a dispute between The city of Miami and the Miami Fraternal Order of Police Lodge #20.

Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.

In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.

On April 27, 2016 the City terminated grievant's employment. The City  articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.

Arbitrator Spero described the first issue as :

 whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.

Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:

[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.

Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.

On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.

According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.

Sunday, June 4, 2017

Law Enforcement: Untruthfulness, reinstatement and Brady issues

Post reinstatement Brady issues for law enforcement officers terminated for claimed dishonesty

Several recent cases involve this issue. A news report describes a lawsuit filed by Clay County MN Deputy Ryan Carey seeking to have his name removed from the County's Brady list. Deputy who Clay County once tried to fire sues in hopes of returning to patrol. Deputy Carey had been dismissed by the Clay County Sheriffs Department in July 2012. The notice of termination listed a number of alleged offenses, including one of "Lying while under Garrity/Tennessen Warning."

Arbitrator James A. Lundberg issued an award rejecting most of  the claimed violations. Concerning the charge that grievant had lied, the arbitrator concluded:

The statements made ...  about text messages were inaccurate but there is no reason to believe that [the] Deputy ... was lying to the investigators. ... The evidence of dishonesty regarding the text message is insufficient. The evidence supporting the claim that grievant lied about whether he apologized to Lt. Morrow for himself or the group and whether he mentioned alcohol as a factoring the conduct on June 10, 2012 is also insufficient. ... The employer did not have just cause to discipline the grievant for dishonesty.

Deputy Carey was reinstated but, according to the news report, he has been removed from patrol duty because his name remains on a Brady list, restricting his ability to testify in court. He has been assigned instead to a courthouse security position. Deputy Carey's suit seeks to have the Brady designation dropped and to have the county barred from refusing to consider him for other positions.

A similar restriction has been imposed by the  San Antonio police department on an officer reinstated following a grievance.  The officer was placed on "indefinite suspension" (i.e. dismissed) after it was discovered that his report of a drug stop was not entirely accurate. The officer's actions at the scene were captured on the Department's COBAN system. While conducting drug interdiction, the officer stopped a vehicle. He had previously observed several suspicious packages being received by the driver. The officer observed two bags of marijuana between the driver seat and the door. During a conversation with the passenger of the vehicle, the passenger admitted that she also had a bag of marijuana, and removed it from her bra. The officer elected to not arrest the passenger, and his report of the incident claimed that he saw three bags between the driver seat and the door. The driver was arrested. Subsequent review of the COBAN video by the prosecutor's office raised a question about the accuracy of the  report and the Department conducted an investigation. As a result of that investigation the officer was placed on indefinite suspension for being "untruthful in his written report concerning where the narcotics were discovered and who had possession of the narcotics."

The case was presented to Arbitrator Don B. Hays who concluded that:

Although obligated by oath and professional position to tell the truth, on this occasion appellant acted and/or spoke untruthfully on many of the subjects that  he knew, or reasonably should have known were of material interest to both the district attorney, the city's investigators and to us.

Nevertheless, Arbitrator Hays found sufficient mitigating factors, including an absence of any improper motive for grievant's actions, to warrant reinstatement. Arbitrator Hays' award can be found here.

According to news reports (SAPD officer accused of looking the other way on narcotics arrest gets termination overturned) the officer has been returned to the force but the District Attorney has placed the officer on a Brady disclosure list and the Department has indicated that his assignments going forward will be limited "to an administrative position that will not be affected by his past disciplinary record."

A third situation also involves a Brady designation and a post reinstatement law suit but it is unclear how much the Brady issues relates to the lawsuit. A King County, WA Deputy was dismissed for alleged dishonesty in continuing to receive supplemental pay for a position she no longer held. The County maintained that the Deputy knew or should have known that receipt of the supplemental pay was improper and failed to take steps have it stopped. Because the Sheriff viewed this as a matter of honesty the office notified the prosecutors office that the Deputy was subject to Brady list disclosure.

Arbitrator David Stiteler sustained the grievance in part. His findings on the dishonesty issue are somewhat ambiguous but he did find that in light of evidence of disparity treatment and management failures in connection with its own handling if the overpayment issue, discharge was too severe a penalty. He found just cause for discipline but not for discharge and ordered the grievant's reinstatement. His award can be found here. Subsequent to the award, grievant claimed that she was "shuffled" into several undesirable jobs before she retired prematurely. Ex-deputy sues, accuses King County sheriff of discriminating against female officers. She has sued the County alleging discrimination and retaliation.

Not waiting for reinstatement, the City of Pittsfield, MA has filed suit contesting the arbitrator ordered reinstatement of a police officer dismissed for, inter alia, untruthfulness and falsifying records in connection with a shoplifting arrest. Pittsfield fights arbiter's decision to reinstate fired police officer. Arbitrator Michael Stutz concluded (here) that the officer's "intentional inaccuracy violated [his] obligation to be absolutely truthful." Finding that three words in the officer's report were "untrue, intentionally misleading, and cause for discipline, but less than intentionally false" he concluded that there was just cause for discipline, but not for dismissal.  Arbitrator Stutz converted the termination to a three day suspension. The City's suit contends that the reinstatement is contrary to public policy by allowing an untruthful officer to remain employed with the department.

Similar issues are discussed in earlier posts: