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.