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.

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