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.

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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.

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.
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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.

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.