Sunday, May 21, 2017

Quick Hits- Police Officers' Bill of Rights, respirator fit tests, and an arbitrator's authority to modify discipline

City's untimely discipline violates Police Officers' Bill of Rights - Reinstatement ordered

Arbitrator Kenneth Starr granted in part a grievance filed by a Naples, FL police officer who had been dismissed for his alleged involvement in the disappearance of another officer's service weapon, and for allegedly telling a security guard that another police officer had been involved in the shooting of that officer's wife (also an officer of the Naples PD) and the shooting death of a third Naples officer. Arbitrator Starr found the first allegation unsupported by the evidence. Concerning the second allegation, the arbitrator concluded that "Taking into account all of the facts and implications contained hereinabove, the arbitrator finds the City was justified in imposing discipline upon Grievant, up to and including, termination."

 Nevertheless, Arbitrator Starr found that the City had violated Florida's Police Officers Bill of Rights, which was incorporated into the cba, by failing to take disciplinary action within 180 days of receiving the allegation underlying the purported grounds for the discipline. He therefore ordered the grievant's reinstatement, but concluded:

However, the arbitrator finds that an award of back pay in this case is inappropriate for several reasons. 20 Grievant in this case bore most, if not all, of the responsibility [for] the problem that resulted in his termination. Additionally, Grievant failed to mitigate his (back pay) damages and, in fact, provided no evidence that he even attempted to find work elsewhere. Accordingly, that portion of the grievance requesting back pay is DENIED in its entirety.
20 See: Elkouri & Elkouri, How Arbitration Works, 7th Ed., at CH.18.3A. iii and Ch 18.3.I. (2012)

Arbitrator Starr's award can be found here.

Eighth Circuit: Arbitrator's award reinstating bearded nuclear security officer not barred by public policy

The Eight Circuit has refused to set aside the dismissal of a Nuclear Security Officer who the employer concluded could not pass a required respirator fit test because of facial hair. Entergy Operations, Inc. v. United Government Security Officers of America The employee was called in for an unannounced fit test, but, because he had what was described as a full goatee, the facility concluded that he would be unable to pass the test. It relied on NRC regulations which it asserted required employees to be clean shaven. Arbitrator Robert Curtis sustained the employee's grievance over his dismissal. Arbitrator Curtis' award can be found here. The arbitrator found that by not at least attempting the fit test the facility could not be sure the employee could not successfully pass the test. He also concluded that Entergy failed to reasonably accommodate the grievant, who was suffering from folliculitis, by not assigning him to a post that did not require the use of a respirator/mask. Entergy sought to set aside the award as contrary to public policy (i.e the NRC regulations). The District Court (here) concluded on the record made at the arbitration hearing that  the arbitrator nether exceeded his authority nor acted contrary to public policy. The Court noted the arbitrator's conclusion that by refusing to conduct the fit test unless grievant shaved Entergy failed to establish that grievant's facial hair would improperly interfere with a proper seal. It also agreed with the arbitrator's reasonable accommodation analysis. On the Company's appeal, the Eight Circuit found it unnecessary to decide whether fit testing an individual with facial hair would violate federal regulations in light of the arbitrator's accommodation analysis. The arbitrator's factual findings on the availability of posts not requiring a fit test was supported by the testimony and Entergy's challenge on this point was based on neither the cba nor federal regulations, but rather on Entergy's practice and preference.

Ohio Supreme Court concludes that limitations on an arbitrator's remedial authority must be set forth in the cba

In its recent decision in Ohio Patrolmen's Benevolent Association v. City of Findlay the Ohio Supreme Court addressed the question of whether a police department's disciplinary matrix, not contained in a cba, could restrict an arbitrator's ability to modify discipline as part of a just cause analysis. The matrix provided that if more than one discipline level was indicated, the Chef had sole discretion in determining which of the levels was appropriate in a particular case. The case arose when Arbitrator James Mancini issued an award finding "just cause for severe discipline" but overturning the Chief's termination decision. The City refused to reinstate the grievant, arguing that since the matrix provided for discipline ranging from a 3-10 day suspension up to termination, the decision of the Chief should prevail. The Trial court and the appellate court agreed with the City's position. The Supreme Court, however, concluded:

Although nothing in the CBA precludes the city from using the matrix as a guide in imposing discipline, treating the matrix as binding on the arbitrator would conflict with the just cause requirement for discipline that the city and the OPBA negotiated into the CBA and as in SORTA, would undermine the integrity of the entire collective bargaining process.

Because the parties did not specifically bargain for the matrix and incorporate it into the CBA, Mancini had authority to review the appropriateness of the disciplinary action imposed in this matter and broad authority to fashion a remedy.

Reversing the decision of the lower Court, the Supreme Court held that:

Any limitation on an arbitrator's authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.

Legally Speaking Ohio's preview of the oral argument here contains an analysis of the case and links to the arbitrator's award and the lower courts' opinions.

Sunday, May 14, 2017

Public policy, police use of force, condonation and the likelihood of recidivism

It took an arbitration, two court decisions and a second arbitration, discussing issues of police use of force, condonation of misconduct, due process, public policy and potential recidivism, but former Des Plaines, IL police officer John Bueno may once again be returning to the force.

Officer Bueno began his employment with the Des Plaines PD in April, 2002. He was considered a hard working officer who received repeated commendations for his performance. He generally received good performance reviews, both before and after the incidents in issue.

In June 2009, he pushed an arrestee who was confined in the station holding cell after hearing the individual make vulgar comments about his daughter. In January 2010 he punched an arrestee in the nose while inside the police station, and in August 2010 he punched a handcuffed prisoner who was seated in the back of his parol car. Grievant did not report the use of force in any of these incidents, as he was required to do by Department policy. Superiors in the Department were aware at least of the later two incidents but took no action.

Almost a year later, in August 2011, the Acting City Manager received letter from an attorney alleging that Bueno had "brutally beaten" prisoners. The Acting Manager subsequently testified that this was the first he became aware of these allegations. He asked the Deputy Chief to conduct an investigation and, following that investigation, the City terminated Bueno's employment in March of 2012. The allegations against Bueno included both the improper use of force and dishonesty during the investigation. The parties agreed to submit the propriety of that termination directly to arbitration, and on May 3, 2013 Arbitrator Peter Feuille issued an award (
here) upholding, in part, the grievance. Arbitrator Feuille concluded that the City had established the improper use of force and that Bueno had not been truthful during the investigation. Nevertheless he found that the City had deprived him of due process by delaying the investigation for so long, and that the Department had condoned the use of force by failing to take any action against Bueno despite knowledge of the incidents. He ordered Bueno's reinstatement without back pay and imposed a three year last chance provision for any future violation of the use of force policy or the Department's truthfulness policy. The award is discussed at Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations

The City sought to vacate the award, claiming that reinstating Bueno despite the findings of improper use force and dishonesty was contrary to public policy. The circuit court agreed and vacated the award. It also denied the Union's request to remand the dispute back to the arbitrator for a factual finding concerning the likelihood that Bueno would reoffend.

The Union appealed, and the Appellate Court concluded that it could not decide the appeal without evidence of "whether Bueno is likely to engage in similar misconduct upon reinstatement." City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240. In reaching this conclusion, the Court first addressed the public policy issue raised by the City. It noted that the Illinois Supreme Court (in AFSCME v. Department of Central Management Services) held that the public policy analysis on a challenge to an arbitration award required a two step process. First, the Court must determine if there is a "well-established and dominant policy implicated by the arbitrator's award."

In this case, the court found that there was:

we find that the arbitration award here implicates a well-defined and dominant public policy, namely, the public policy against police officers unnecessarily using force against prisoners and being dishonest about that use of force during a subsequent investigation.

The second prong then an analysis of "whether the arbitrator's award, as reflected in his interpretation of the agreement, violated the public policy."

Applying that second prong to the case before it, the Appellate Court described the issue as :

whether the arbitrator's award, i.e., reinstatement of Bueno as a police officer under the terms and conditions attached to his reinstatement, resulted in a violation of the established public policy of ensuring that law enforcement officers refrain from using unnecessary or unreasonable force, failing to report such incidents if they occur, and being untruthful during investigations of the incidents.

The court determined that the record, including the arbitrator's award, was devoid of any finding on the "likelihood of recidivism" and that without such a finding it couldn't determine whether reinstatement was contrary to public policy. Accordingly it ordered the remand of the case to the arbitrator an express finding on this question.

Arbitrator James R. Cox (appointed after the death of Arbitrator Fuille) has now concluded that Bueno is unlikely to engage in similar conduct in the future. Arbitrator Cox's award can be found here.

Arbitrator Cox noted that since the incidents in question the apartment has a new Chief. He noted changes in both the environment of the police department and the unlikelihood of future offenses by the grievant:

That conclusion is based not only on the positive recognition of his performance as a Des Plaines Police Officer, but upon Steps the City has taken after the 2011 disclosures of Bueno's misconduct in the [redacted] cases. Those Steps changed his working environment by eliminating the previous climate of condonation within the City of Des Plaines Police Department.
John Bueno now knows without question, that the City of Des Plaines and their Police Department do not approve of use of excessive force towards prisoners.

Arbitrator Cox also noted that the last chance provision that was part of Arbitrator Feuille's reinstatement order makes it unlikely that Bueno would engage in similar acts in the future.

According to news reports, while the City has not made a final decision on whether it will appeal the case once again, grievant will likely be returning to the department. Bueno Might Be Back By August.

Sunday, May 7, 2017

DC Circuit panel split on impact of public policy on OIG investigation arbitration award

In National Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Committee, the DC Circuit, over a strong dissent by Judge Pillard, has affirmed the District Court's decision vacating an arbitrator's award that reinstated a member of the Amtrak police department.

The cba between Amtrak and the Union contained a "Police Officer's Bill of Rights" provision. That provision ("Rule 50") required that any officer subject to an investigation be informed of their right to remain silent, the right to delay questioning to have a union representative present, and the recording of the interview with the officer by either mechanical or stenographic means.

After allegations arose that an officer jointly owned a home with her supervisor and received a disproportionate share of premium assignments, Amtrak's Internal Affairs Unit conducted an investigation. The officer was interviewed in compliance with Rule 50. That investigation was closed without discipline (other than a letter of counseling for creating the appearance of impropriety and potential conflict of interest). The Office of Inspector General subsequently conducted its own investigation. The officer was again interviewed, but was not advised of her right to have a union representative present and the interview was not recorded. After receiving the Inspector General's report, which concluded that the officer had made false statements and omissions during the internal affairs investigation and that some of her conduct was potentially criminal, Amtrak terminated the employment of the officer.

The termination was pursued to arbitration, and Arbitrator Joan Parker ordered the officer's reinstatement, concluding that "because the procedural safeguards guaranteed to employees by Rule 50 were not afforded her during the ...Amtrak OIG interrogation" there was not just cause for her discharge. Arbitrator Parker's award can be found here.

Shortly after the arbitrator's award was issued, the DC Circuit issued its decision in U.S. Department of Homeland Security v. Federal Labor Relations Authority holding that "public sector unions and agencies can neither add to nor subtract from the OIG's investigators authority through collective bargaining." 

Amtrak sought to vacate the arbitrator's award. The District Court granted that request (
here), concluding that the award was contrary to public policy. The Court held that the Circuit court's decision in the Department of Homeland Security case:

... makes clear that the IG Act's public policy of Inspector General independence would be violated if CBAs could restrict an Inspector General's investigative authority. Because the Arbitrator's Decision would subject the Amtrak OIG's investigative powers to limitations contained in a CBA — not a statute — there is no question that the Decision is contrary to the public policy underlying the IG Act. Thus, the Arbitrator's Decision cannot stand.

The Court denied the Union's Motion for For Reconsideration (here), and the Union appealed.

The Circuit court, in a 2-1 decision, has affirmed. The majority determined that the Court's previous decision in Department of Homeland Security "is directly on point." The Court noted that the Arbitrator explicitly based her decision on the OIG's failure to observe the provisions of Rule 50 and held:

It makes no difference that DHS was decided after the arbitration award. ... That collective bargaining agreements may not regulate an Inspector General's investigatory authority has been the law for decades, as the Fourth Circuit's 1994 decision in Nuclear Regulatory Commission v. FLRA shows. ... A federal court, reviewing an arbitration award, "may refuse to enforce contracts that violate law or public policy." United Paperworkers, 484 U.S. at 42 (citing Hurd, 334 U.S. at 35). Rule 50, as applied to the Amtrak Inspector General, is such a contractual provision and the district court was right in refusing to enforce the arbitrator's award based on that provision.

The dissent, noting the "extremely narrow" scope of review of arbitration awards, would confirm the award. Judge Pillard noted that while the arbitrator did not anticipate the Circuit's subsequent Homeland Security decision, nothing in the arbitrator's reasoning, i.e. that the employee was dismissed without appropriate procedural objections, compeled any violation of public policy. Contrary to the majority's public policy analysis, Judge Pillard concluded:

The court's decision to vacate the arbitral award in this case contradicts decades of precedent delineating a narrow public policy exception and threatens as a practical matter to destabilize many, if not most, arbitral awards. Indeed, its impact may well reach beyond labor arbitration to commercial arbitration under the Federal Arbitration Act, as "[t]here is no doubt that the scope of review of arbitration in cases involving mandatory arbitration of statutory claims is at least as great as the judicial review available in the context of collective bargaining." Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1486 (D.C. Cir. 1997) (emphasis omitted). Today's decision invites litigation in every case in which a disappointed party to an arbitration can base its objection on some claim of error that places the award at odds with "law or public policy." Once arbitration becomes the start rather than the end of the dispute resolution process, it no longer serves the role Congress envisioned. Because I do not see how, consistent with binding precedent, the court can relieve Amtrak of its obligation to comply with its collective bargaining agreement and the arbitral awards rendered thereunder, I respectfully dissent.

Sunday, April 30, 2017

Quick Hits - DC Metro, evidence in arbitration, school principals and police officers

DC Metro unsuccessful in effort to vacate arbitrator's award

The US District Court in DC has upheld an arbitrator's award reinstating an employee alleged to have misrepresented maintenance work on Metrorail tunnel fans.  The alleged misrepresentation was discovered during an investigation of  an unrelated electrical malfunction that caused a tunnel to fill with smoke, resulting in the death of a passenger. The employee was terminated  for allegedly falsifying maintenance records of "safety critical" equipment, and being untruthful during investigative interviews. Arbitrator Ezio Borchini converted grievant's termination to a 180 day suspension. The arbitrator concluded that the evidence showed  "systemic maintenance practices which tend toward mitigation of discipline." These practices included the Authority's acceptance of preventive maintenance reports which were blank on the issue of local and remote fan testing. The Authority's effort to vacate the award has been denied by the Court. Contrary to the Authority's arguments, the Court found nothing contrary to the cba in the Arbitrator's just cause analysis. Rejecting the Authority's claim that it had the reserved right to terminate employees for egregious misconduct the Court noted:

If WMATA is correct that running a safe metro requires unfettered discretion to fire employees when they breach cardinal safety protocols, its remedy lies in negotiations over a new CBA with the Union for such authority. That, however, is not what it appears to have bargained for under the current one.

The Court also rejected  claims that the award was contrary to public policy and was arbitrary and capricious. 

Arbitrator Borchini's award can be found here. The Court's decision here.

NJ Court rejects claim arbitrator disregarded his own evidentiary rulings, depriving employer of fair hearing

Grievant was a nurse at a psychiatric unit of an acute care hospital. During her shift, one of the patients sexually assaulted another. The hospital alleged that grievant's  negligence  allowed the assault to take place and terminated her employment. That action was grieved and submitted to Arbitrator Jack Tillem for resolution. Arbitrator Tillem reduced the termination to a suspension and ordered the grievant's reinstatement without back pay. Arbitrator Tillem's award can be found here. The hospital sought to vacate the award, arguing that the arbitrator had ignored his own prior rulings excluding certain evidence, and that his award was in manifest disregard of the law. The Court denied the Hospital's request, noting that it "has not met the 'exacting' burden required to vacate an arbitration award under either of its two separate theories." With regard to the claim that the award was in manifest disregard of the law, the Court noted that it remained an open question whether this was still a viable basis to set aside an arbitrator's award, but even if it was, the arbitrator's claimed error in relaying on purportedly excluded evidence did not rise to the level of "manifest disregard."
The Court's opinion can be found here.

Pa Court confirms arbitrator awards reinstating school principals

   The Pennsylvania Commonwealth Court, here and here, has overturned lower court decisions vacating arbitrators' awards reinstating school principals accused of involvement in a cheating scandal. Both principals were dismissed after an investigation revealed a significant number of "beneficial erasures" on student standardized tests. The investigation concluded that school employees had altered the tests to improve student scores. In both cases arbitrators found insufficient evidence that the principals had participated in the cheating but concluded that they had been negligent in allowing it to take place. They overturned the terminations and substituted suspensions.  The School District sought to vacate the awards, claiming that the arbitrators had improperly modified the discipline imposed, and that the awards were contrary to public policy. The Commonwealth Court, overturning trial court decisions, rejected both contentions. The Court  concluded that the arbitrators acted well within their authority in modifying the discipline in light of their factfinding, and that the misconduct found, i.e. negligence, did not require termination as a matter of public policy.

San Antonio PD officer dismissed for offering to fight handcuffed prisoner reinstated

A San Antonio police officer who uncuffed a belligerent prisoner and offered to fight him "one on one" was reinstated by Arbitrator Lynne Gomez. The officer had been indefinitely suspended following the incident. The Chief believed the officer was still subject to a last chance agreement because of an earlier episode, and relied on that, in part, in concluding that dismissal was appropriate.
Arbitrator Gomez agreed with the Union that the Last Chance Agreement had expired prior to the current incident and that, without that, the facts did not support just cause for termination. The Arbitrator noted that no fight actually took place, that prior to the uncuffing the officer had made repeated attempts to pacify the individual (a fact of which the Chief was not aware) and that because of the erroneous reliance on the last chance agreement appropriate progressive discipline was not considered. KSAT reports on the award (SAPD officer appeals termination, wins job back through arbitration) and the arbitrator's award can be found here.

Sunday, April 23, 2017

Court rejects arbitrator's past practice analysis, denies claim for commuting benefit

The NJ Appellate Division has upheld a lower court decision vacating an arbitrator's award, finding the arbitrator's analysis "illogical" and in excess of his authority.  In  State of NJ (Division of State Police) v. State Troopers Fraternal Association the Court rejected the Union's efforts to confirm an award ordering the State to reimburse State Troopers for commuting expenses incurred on the state's toll roads.

The Court noted that the essential facts were undisputed:

...they can be summarized briefly. For many years, the New jersey Turnpike Authority and the South Jersey Transportation Authority - independent authorities that operate theState's major toll roads - allowed State Troopers to travel over those roads in their personal vehicles without paying tolls. As a result, the Troopers were able to commute to and from work without incurring that expense.

In November 2010, the two authorities notified the Division of State Police that they would no longer provide toll-free passage to Troopers commuting to and from work. When the Division declined to reimburse Troopers for the toll-related commuting expenses, the Troopers Association filed a grievance challenging what it described as the "unilateral suspension of non-revenue toll road passage." The Union alleged that the Division's refusal breached the maintenance of benefits provision of its cba. 

The arbitrator sustained the grievance, concluding that the provision of toll-free passage was a benefit of a type that was negotiable and that reimbursement had become an established past practice. The Division sought to vacate the award, and the superior court granted that request. The court found that the arbitrator exceeded his authority and made a mistake of law by reading into the cba a term not found there and that the award was not a "reasonably debatable" interpretation of the contract. 

On the Union's appeal, the Appellate Division affirmed. It noted:

...the arbitrator's discussion of the third-party nature of the benefit was illogical. Under the stipulated facts, the privilege of toll-free commutation was a gratuitous benefit provided by the Authorities, and not a benefit provided by, agreed to, or controlled by the Division. The toll-free arrangement was a "past practice" between the Authorities and the Troopers, not between the Troopers and the Division. 

The Court found further that toll-free commutation was never a benefit actually provided by the Division, either directly or by agreement with the Authorities, and was therefore not covered by the maintenance of benefits provision.  

Sunday, April 9, 2017

Arbitrator rejects termination for use of excessive force, finds disparate treatment

Arbitrator Richard Miller has modified the termination of a police officer for the City of St. Paul, MN. The officer had been dismissed for what the City believed to be the excessive use of force.

On the evening of June 24, 2016, the officer and his partner were on patrol when they arrived on the scene of a reported fight involving a least one individual who was alleged to have a weapon. After conducting an initial investigation, the two received a radio transmission from the Department's K-9 officer who informed them that he had located an individual matching the reported description. Before grievant's arrival, the K-9 officer had released his dog on the individual. When grievant arrived on the scene the dog had the suspect on the ground, dragging him in circles on the pavement. Grievant, believing the suspect noncompliant with the officers instructions, and concerned that he had a weapon, administered two standing kicks to the suspect's midsection. After 14 seconds, believing the suspect was still not complying, the officer kicked him again. Grievant directed the kicks to the midsection because he did not want to accidentally kick the dog, and because he wanted to avoid kicking the suspect in the head, which would have been considered deadly force. After he was subdued, the suspect was transported to the hospital where an examination showed he had rib fractures on both sides and a collapsed lung. He did not have a weapon.

The new police chief, who had assumed that position on June 23rd,  learned of the incident from a local representative of the NAACP and ordered an investigation. Following the investigation the Chief disciplined both grievant and the K-9 officer. The Chief offered the K-9 officer a 30 day suspension in lieu of termination if he agreed not to contest the suspension. Grievant was offered no such option and his employment was terminated. That termination was grieved and ultimately submitted to Arbitrator Miller for resolution.

Arbitrator Miller converted the termination to a thirty day suspension. He found that grievant's act of kicking the suspect was not expressly prohibited by the Department's policy and was not contrary to the training grievant had received. He also noted that grievant had been faced with "a tense, uncertain and rapidly evolving situation involving an uncooperative witness."  Finally, he noted the disparity between the discipline imposed on grievant and that imposed on the K-9 officer:

It is difficult to believe that being dragged on the pavement in circles by a K-9 who is biting your leg is less traumatic and painful than being kicked in the torso three times. Thus, whether or not the Grievant's misconduct was more or less egregious than the misconduct of [the K-9 officer] misses the point. Both their actions were egregious and not distinguishable to warrant one receiving 30-day suspension and the other termination. They both deserve to be penalized for their actions, but the penalty should be the same for their misconduct.

Observing that the Police Civilian Internal Affairs Review Commission had initially recommended a thirty day suspension for grievant, Arbitrator Miller overturned the termination and reduced the suspension to the recommended thirty days.

Arbitrator Miller's award can be found here.

Sunday, February 26, 2017

Arbitrators exceeding their powers - three courts reverse

Arbitrator ignored limitations in cba

The cba between CenterPoint Energy and the Gas Workers sets forth several offenses which provide "absolute causes" for discharge and limit an arbitrator to the question of whether the employee, in fact, committed the offense. 

An employee was dismissed for allegedly "falsifying time sheets and neglect of duty," both of which are among the "absolute cause" offenses. The dispute about the dismissal was submitted to arbitrator Richard Miller for resolution. In his award, Arbitrator Miller found that the Company had established that grievant had engaged in the conduct alleged on some, but not all, of the dates in question. Nevertheless, he concluded that the Company did not have just cause for the dismissal. Rejecting the Company's reliance on the "absolute cause" language, the Arbitrator concluded that he was still free to modify the discipline.  He held:

To interpret Article 26 in any other manner would violate all of the basic notions fairness and due process firmly established in the history of industrial relations and implicit in Article 26, which also includes a just cause standard for discipline and discharge.

Arbitrator  Miller converted the discipline to a suspension without back pay and ordered the grievant's reinstatement.

CenterPoint sought to vacate the award, claiming that the arbitrator exceeded his authority by ignoring the explicit language of the contract. The District Court agreed. It found:

The Arbitrator here acted outside the scope of his authority by disregarding the plain language of the CBA.

This provision clearly and unambiguously limits the arbitrator's authority to determining whether an employee is guilty of the facts constituting any of the four absolute causes. Once the arbitrator makes that determination, the arbitrator's authority ceases and he can no longer fashion a remedy he believes is appropriate given the circumstances. 

Accordingly the Court vacated the award.

Arbitrator altered the charges against  a teacher and then found charge unsupported

  The NJ Supreme Court in Bound Brook Bd of Education v. Ciripompa overturned an award of Arbitrator Michael J. Pecklers in a teacher tenure proceeding. 

 Two counts of tenure charges had been brought against the teacher for unbecoming conduct. The first related to claims that the teacher had used his employer issued laptop to send nude pictures of himself and to solicit similar pictures from women on the internet. Count II alleged that he had engaged in inappropriate conduct towards female staff members and made comments about their dress and physical appearence. The tenure charges were submitted to Arbitrator Pecklers for resolution. Arbitrator Pecklers found that the Board proved the allegations of Count I. With regard to Count II,  he noted that while the Count did not specifically allege sexual harassment, in light of the evidence this was the substance of the allegation. He then considered the evidence in light of the NJ Supreme Court's decision in Lehmann v. Toys 'R' Us, Inc, a case interpreting the NJ Law Against Discrimination, and found that the evidence did not support a finding of a hostile work environment.  In view of his findings regarding Count I and his dismissal of Count II the arbitrator converted the dismissal to a 120 days suspension. 

On the School District's appeal, the case was ultimately appealed to the N.J. Supreme Court.  Describing the issue before it, the Court wrote:

 In this case we determine whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. We find that he did.

The Court determined that the Arbitrator erred in essentially modifying the allegations in Count II from unbecoming conduct to sexual harassment, noting 

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator "imperfectly executed" his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context

The Court ordered the dispute remanded to a different arbitrator to decide the question of whether the teacher committed unbecoming conduct and the appropriate penalty if he did so. 

Arbitrator improperly ordered University to award tenure

The District Court of Appeal in Florida found that an arbitrator erred in ordering Florida Atlantic University to award tenure to a professor. The arbitrator found that the University relied on improper criteria in its decision to deny tenure and ordered the school to follow the established criteria and  grant the professor's application for promotion and tenure. A lower court  found that the arbitrator exceeded his authority in awarding tenure, but ordered the school to provide grievant with an additional year of employment during which she could reapply for tenure. The Court of Appeal in Nash v. Florida Atlantic University found both the arbitrator and the lower court erred.  It held:

...the arbitrator exceeded his authority in directing the University to grant Nash a promotion and tenure. Although the parties stipulated that the arbitrator would determine "the appropriate remedy" for a breach of the CBA, the parties did not expressly place before the arbitrator the issue of whether Nash should have been granted promotion and tenure. Rather, the issue was whether the University had violated the CBA's procedure for determining an application for tenure and promotion. It is clear to us that once the arbitrator found the University violated the procedure by not relying on established criteria, "the appropriate remedy" was for the arbitrator to direct the University to review Nash's application using the correct criteria.

The court also rejected the lower court's order of an additional year of employment, concluding that the lower court should have directed the University to review grievant's application using the correct criteria. 

Sunday, February 19, 2017

Quick Hits - Public policy, double jeopardy and emails

Four (unsuccessful) public policy challenges to arbitration awards

Courts continue to carefully scrutinize challenges to arbitration awards based on claims that the award is contrary to public policy. In  Cuyahoga Metropolitan Housing Authority v. Fraternal Order of Police, Ohio Labor Council, the Ohio Court of Appeals rejected the agency's request to vacate an award that converted a termination of a CMHA detective into a thirty day suspension. The Court, with one dissent, found that it was bound by the arbitrator's factual findings that the detective had not used excessive force, nor had he been dishonest as the agency had alleged. Given these factual findings the Court found no basis to overturn the award.  In City of Guthrie v. Fraternal Order of Police, Lodge 105 the Oklahoma Court of Civil Appeals similarly rejected the City's challenge to the award  of Arbitrator Mark Reed which reduced the discipline of a police lieutenant accused of improperly arresting the former husband of his girlfriend. The court found no public policy impediment to enforcement of the decision imposing a suspension rather than a termination. In Jersey City POBA v. City of Jersey City  the NJ Superior Court found no "contractual, administrative, legislative, or legal authority" compelling it to vacate an award ordering the City to pay terminal leave benefits to an officer who retired during the pendency of criminal proceeding against him. Finally, in Cornwall-Lebanon School District, v. Cornwall-Lebanon Education Association, the Pennsylvania Commonwealth Court reversed a lower court's decision vacating an award as contrary to public policy. An arbitrator had converted the discipline of a teacher, who had a sexual relationship with a student starting on her graduation night and who was alleged to have lied about it, from termination to a one year suspension. The lower court concluded that termination would prevent future inappropriate conduct and that a teacher who had lied was not an appropriate mentor for students. The Commonwealth Court found that the lower court had improperly reweighed the evidence, and noted that the arbitrator had imposed an appropriate remedy for the misconduct he found. Accordingly, and "[k]eeping in mind that the public policy exception is narrow" the Court reversed.

Arbitrator finds exchange of racist and pornographic emails justified termination

Arbitrator James Reynolds denied the grievance filed on behalf of  Miami Beach Police Lieutenant who had been terminated for distributing racially and sexually charged emails with other members of the police department. Rejecting the Union challenge to the timeliness of the investigation, and claims of disparate treatment and double jeopardy (arising from prior undocumented counseling and a demotion from a non bargaining unit position) Arbitrator Reynolds found grievant's actions "shameful and disgraceful" and sustained the termination.

Court erred in hearing testimony on petition to vacate arbitration award

The City of Norwalk, CT terminated the employment of a police sergeant who had allegedly informed another officer of a criminal investigation against him. The termination was grieved and ultimately heard by a panel of the Connecticut Board of Mediation and Arbitration. The panel (2-1) upheld the termination. In doing so it rejected the sergeant's claim that he had been subjected to double jeopardy because he had been reassigned to a different position after discovery of his actions. The panel rejected this claim, finding that no grievance had been filed about the transfer and that a transfer was not disciplinary. The Union sought to vacate the award, claiming that it was in manifest disregard of the law since it ignored the "long standing " principle that double jeopardy was part of the just cause analysis.  The trial court ordered a hearing and allowed the Union to present testimony on the circumstances surrounding the grievant's transfer. After hearing testimony the trial court concluded that because the City had no right to discipline grievant twice for the same event there was no just cause for the termination. Accordingly, it vacated the award.

The City appealed and the Connecticut Supreme Court unanimously reversed. It held:

We conclude ... that the trial court improperly allowed Couture [the grievant] to give testimony on the issue and substituted its finding that Rilling's reassignment of Couture to the patrol division constituted discipline for the arbitration board's finding to the contrary. Because the trial court's conclusion that Couture was subject to double jeopardy was predicated on this finding, and because this conclusion, in turn, provided the basis for the court's determination that the arbitration award was in manifest disregard of the law, that determination cannot stand. Accordingly, we conclude that the trial court improperly vacated the award of the arbitration board.

Sunday, February 5, 2017

Court rejects Union's challenge to outsourcing award-work was supplemental and was not replaced elsewhere

Steelworkers Local 10-86 represents employees at Merck facility in West Point, PA. The facility is primary used for the production of large molecule products like vaccines, rather than small molecule products like tablets.

Merck sold a small molecule product (Janumet) used to control blood sugar levels in individuals with Type  2 diabetes. In 2006 Merck entered into a contract with Patheon, a third party supplier, pursuant to which Patheon would produce no less than eighty percent of the total worldwide requirements for Janumet. In 2006 the West Point facility was designated as a back up facility which could supply the difference between the demand and what Patheon could manufacture. Production of Janumet at West Point continued until December of 2014 when Merck announced that it was ceasing the manufacture of Janumet at West Point because a back up supplier was no longer needed in light of "stabilization of supply and demand."

The Steelworkers grieved that decision, alleging that the Company's actions violated language of its cba which provided:

                                                     Article 15-Subcontracting
It is the intention of the parties and of this provision to protect and preserve bargaining unit work for bargaining unit employees.

The Company will not contract out work to individuals or to other companies which is normally performed by bargaining unit(s) employees where the necessary equipment is at hand, qualified employees are available, project completion dates can be met and the results would otherwise be consistent with efficient and economic operations. 

  The Union claimed that the Merck had outsourced or contracted the Janumet work at West Point in violation of the clear and express language of the contract. Merck maintained that it had not outsourced work, but that it had simply hired and laid off employees as demand for Janumet rose and then fell. It argued that it had ceased production at West Point without hiring employees elsewhere.

The dispute was submitted to Arbitrator Shyman Das, who issued an award on September 1, 2015.  Arbitrator Das essentially agreed with Merck. He concluded:

In these particular circumstances, a critical consideration as to whether the Company violated Article 15 is that the production of Janumet at West Point always was in a backup or contingent capacity. [footnote omitted[ External suppliers, in particular Patheon, always have been the primary source of Janumet production. There never was a specified volume of share of total production assigned to West Point. For much of the seven years period in which certain strengths of Janumet for distribution in the United States and European Union were manufactured at West Point, the Company needed all the Janumet West Point could produce with its existing and later expanded ...facilities and manpower. When the need no longer was there, the Company -- consistent with its large molecule versus small molecule business strategy -- decided to cease production of Janumet at West Point because its other primary suppliers with their expanded capacity were more that capable of meeting the no longer increasing demand for Janumet. On these facts, I am unable to conclude that the Company violated Article 15 by "contract[ing] out work ... which is normally performed by bargaining unit (s) employees " at West Point.

The Union sought to have the award set aside, claiming it was one of the "rare instances" where an award was subject to reversal because:

    ...  the arbitrator made his decision based on principles that were not bargained for and are not encompassed within the CBA. Specifically, the Union argues the arbitrator impermissibly "used third-party contracts and un-bargained for concepts about exclusivity and primacy to interpret the already plain and unambiguous language of Article 15."

The District Court rejected this effort and confirmed the award. Contrary to the Union's claims, the Court concluded that the arbitrator was at least "arguably construing" the cba and that there was no basis to find that he was adding to or ignoring it. The Court  noted that Arbitrator Das specifically addressed the question  of whether the work in question was "normally performed" by the West Point employees and that he also found that the work done at West Point was not replaced elsewhere. The Court noted:

Given the need to define "normally" under Article 15, the course of dealings between the parties (particularly West Point's explicit role as a supplemental supplier and Merck's large molecule-small molecule business strategy), and the fact that no jobs lost at West Point were recreated elsewhere, I am persuaded that, whether right or wrong, the arbitrator's decision was rooted in the language of the CBA. For these reasons, the Union has failed to meet its difficult burden. The arbitrator's award must be affirmed, and summary judgment is therefore granted to Merck.

The Court's decision in  United Steelworkers, Local 10-00086 v. Merck & Co. can be found here.

Sunday, January 29, 2017

Police officers, Brady/Giglio, dishonesty, exoneration and just cause

A recent award by Arbitrator Micheal Falvo addresses all of these topics. Arbitrator Falvo sustained a grievance filed on behalf of a Champaign, Ill. police officer terminated after the State's Attorney declared that she did not believe she could use him as a witness because of his disciplinary history, including  an allegation of dishonesty overturned in an earlier arbitration.

Officer Matt Rush began his employment with the City of Champaign in February 2010. Over the course of his employment he was the subject of several disciplinary actions. In March 2014 he was suspended for one day for failing to turn in a citation he had issued in connection with a traffic stop. He admitted he forgot to turn the ticket in and did not challenge the suspension. A second incident occurred in April 2014. Officer Rush was alleged to have engaged in unprofessional conduct in connection with his handling of a disturbance. He admitted using profanity and acknowledged he did not act professionally during this encounter. During the encounter Officer Rush twice kicked in the legs an individual who was refusing to get into the police vehicle. The Department agreed that the first kick was a reasonable use of force but maintained that the second was inappropriate. Rush was suspended for three days as a result of his conduct during this incident. A third incident occurred in May 2014 when Rush was accused of punching an individual he was attempting to subdue. He was also accused of dishonesty, i.e., falsely denying that he had thrown a punch. His employment was terminated as a result of these events.  Because of the claimed dishonesty the Chief sent the following letter to the State's Attorney:

As required by law, I write to inform you of a recent disciplinary matter involving an officer of the Champaign Police Department. On August 8, 2014, Officer Matt Rush was charged with a violation of department policy wherein the offending behavior involved untruthful or deceptive representations. As you are aware, under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) and its progeny, the Champaign Police Department is required to disclose such information regarding the untruthfulness of law enforcement officers to prosecutors.

Please feel free to contact my office in the event that you have any questions regarding this matter.

Rush grieved the termination and in April 2015 Arbitrator Fredric Dichter issued an award finding the one and three day suspensions appropriate (but finding the claim regarding the second kick unsupported), but overturning the termination. Arbitrator Dichter concluded that "the only evidence [of a punch] is a blurry video taken from some distance away ..." and found no evidence of malice or loss of temper but rather an effort to subdue an uncooperative person. The Arbitrator found this conduct, by itself, did not justify termination. Turning to "the other serious charge, dishonesty," he concluded that while some viewing the dash cam video (including himself) may view the video one way, grievant "may very honestly be seeing it another." Arbitrator Dichter noted:

Lying requires intent. Grievant is apparently wrong in his perception of what he did, but the Arbitrator finds it is based on his errant perception of events and not on an intent to deceive.

Concluding that discipline was warranted for grievant's handling of the incident, but not for dishonesty, Arbitrator Dichter reduced the termination to a thirty day suspension

In accord with the award, Rush was reinstated to the Police Department. The Chief also sent another letter to the State's Attorney enclosing a copy of the Arbitrator's award.

In December of 2015 local media reported on several pending settlements of claims involving local police officers use of force, primarily involving Officer Rush. Examples are here, here, and here. In response to citizen demands that Officer Rush be prosecuted for claimed use of excessive force, the State's Attorney conducted an investigation. On February 23, 2016 she informed the Chief of the results of her investigation and also issued a press release. While declining  to prosecute, she noted:

Although the State’s Attorney’s Office is declining to file criminal charges against Officer Matt Rush, in light of our review of Officer Rush's actions and behavior during these incidents and in the light of the entirety of Officer Rush's history of internal discipline for failure to adequately document use of force and untruthfulness, we are unable to use Officer Matt Rush as a witness for the prosecution in criminal cases. Officer Rush's repeated discipline for failure to adequately document use of force and untruthfulness as outlined here and in other disciplinary actions reviewed in the course of this examination create a substantial issue with regards to his credibility as a state witness, subject him to cross-examination on these issues, and require the State’s Attorney's Office to work around him in order to bring criminal cases to trial. Moreover, a review of these incidents cause us great concern about his judgement and decision making in crisis situations, particularly with regard to his response the mentally ill. In light of these concerns, having given this matter serious consideration and taking into account his full disciplinary history, we have concluded that if Officer Rush were to return to active duty, we will not call Officer Rush as a witness for the prosecution in criminal proceedings.

Upon receipt of the letter, the Chief conducted a fact finding with Rush and his Union, but ultimately terminated his employment because he believed his inability to testify made him "unable to perform the essential functions of [his] position." This action was grieved and submitted to Arbitrator Falvo for resolution. After a comprehensive review of arbitration awards and case law, Arbitrator Falvo sustained the grievance and ordered grievant again be reinstated. The Arbitrator emphasized that except for the charge of dishonesty overturned by Arbitrator Dichter grievant had not been accused of or disciplined for untruthfulness. Noting the potential for "behind the scenes collusion," Arbitrator Falvo concluded:

If a prosecutor is empowered with the unbridled and unreviewable discretion to deem an officer “disqualified” to testify -- with the consequence that she loses her job because obviously there is no place in a police department for a law enforcement officer with that incapacity – contractual or statutory just cause protections are a nullity. An arbitrator would need to be more na├»ve than parties should expect not to realize that one must be alert to the danger that a losing party in a disciplinary arbitration will try to undo a disappointing result by finding an alternative path to reinstate what the arbitrator reversed. By no means is this to imply that a decision by a prosecutor that an officer will not be called testify that results in her dismissal cannot in the appropriate case meet the just cause standard. Rather, it means that an arbitrator’s non-delegable responsibility to determine whether just cause does or does not exist requires that he bring informed judgment to the case with the recognition that deference to the judgments of public officials cannot be blindly and uncritically ratified.

Regarding the positions articulated by the State's Attorney, Arbitrator Falvo found that in light of Arbitrator Dichter's conclusion that Rush had not engaged in intentional misrepresentation, her reliance on perceived Brady/Giglio obligations was misplaced.  He also found that the other reasons cited by her did not support a claim of just cause for the Officer's termination. Arbitrator Falvo similarly rejected the Department's reliance on the "well established doctrine of persona non grata" (typically used when a third party customer bars a bargaining unit employee from their premises).

Accordingly he ordered Rush' reinstatement with back pay and the expungement of any reference to the disciplinary action in his personal records.

A third arbitration, arising from a different incident, also claimed by the Department to justify Officer Rush's termination was scheduled for hearing but has since been settled. Pursuant to the settlement Rush waives reinstatement while the City agrees not to appeal Falvo's decision.

The New Hampshire Supreme Court addressed a similar issue in Duchesne v. Hillsborough County Attorney, granting the request of three police officers to have their names removed from that State's "Laurie List" after an arbitrator and the State Attorney General's office had cleared them of allegations of excessive force.

Sunday, January 8, 2017

Management rights clause doesn't supersede ADA - Court confirms arbitrator's award

A Solo Cup facility decided to end its lease of sit down fork lifts and instead to purchase several for its use. After a review of various options, Solo elected to purchase stand up fork lifts, concluding that these provided better safety and reduced the risk of injury. 

Tamela Wells was a bargaining unit employee who had operated a fork lift for a significant portion of her thirty-two years at the facility. Following the introduction of the stand up fork lifts, she sought an accommodation allowing her to continue to use a sit down lift. Wells presented medical information supporting her claim that the extended standing caused by the new fork lifts created problems for her. While the parties were initially able to accommodate Wells request to allow her to take more frequent breaks from operating a stand up fork lift, they ultimately came to impasse on her (and her physician’s) assertion that frequent breaks were inadequate and that she needed to be allowed to regularly utilize a sit down lift instead of a stand up one. 

Solo maintained that allowing this would be contrary to the improved safety the stand up lifts provided and that the management rights clause of the cba expressly authorized it "to change or eliminate existing methods of operations, equipment or facilities...." Concluding that it was unable to accommodate her request, and that there were no other available positions for her, Solo terminated Wells' employment.

Wells' Union (Teamsters Local 528) grieved that decision and the dispute was submitted to Arbitrator William Dealy for resolution. Arbitrator Dealy upheld  the grievance. He recognized that the cba allowed the Company to change equipment, but concluded that the Company breached its ADA obligations by failing to accommodate Wells. He ordered the Company to "provide the Grievant with a sit-down style forklift to use to perform her work." 

Solo sought to vacate the award, arguing that the award "usurped Solo's power to implement new equipment" and that, in any case, the award was not authorized by the ADA. 

The District Court for the Southern District of Georgia rejected both of these contentions and confirmed the award. Solo Cup Operating Corp. v. Teamsters Local 528. The Court noted that the arbitrator recognized the Company's contractual right to introduce new equipment and found that the award did not contravene that right. It concluded:

… the arbitrator may have concluded that, though Solo had the general power to manage its equipment, Article 5 did not obviate the possibility that Article 27 [the nondiscrimination article] could require Solo to introduce unique equipment for a single employee. While Solo may disagree with such an interpretation of the agreement, it is not so implausible that it warrants vacating or modifying the award.

The Court also rejected Solo's claim that the arbitrator erred by ordering it to adopt a specific accommodation, i.e to provide  grievant with sit down fork lift. The Court noted that the parties had previously discussed potential alternatives but were unable to agree. It noted:

…while the arbitrator may have been permitted to simply instruct the parties to decide on an accommodation themselves, he was not required to do so. As noted, the arbitrator framed the issues as: "Did the Company violate provisions of the parties' collective bargaining agreement and/or any provisions of Federal law . . . ? If so, what is the remedy?" (Doc. 24-4 at 24 (emphasis added).) And he decided that the appropriate remedy was to order Ms. Wells reinstated and provided with a sit-down forklift.

Moreover, to the extent the arbitrator contemplated leaving the determination of the specific accommodation to the parties to decide, his refusal to do so makes sense. Solo argues that numerous other accommodations existed, including allowing Ms. Wells to take breaks and moving her to a different position. But Solo rejected similar requests prior to the arbitration. Accordingly, it would not have been especially efficient for the arbitrator to broadly instruct Solo to comply with the ADA because it may have resulted in Solo once again refusing to accommodate Ms. Wells. That is, Solo was required to comply with the ADA prior to the arbitration. There is little reason to think that an abstract instruction from the arbitrator would have changed what Solo viewed as reasonable accommodations.

The Court granted the Union's request to confirm the award, but rejected its claim for attorney fees, finding the Company's position plausible if ultimately unfounded.