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:

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.