Assignment to light duty and seniority issues - Court upholds arbitrator's award

The PA Commonwealth Court has upheld an award of Arbitrator Mark McCloskey in connection with a grievance filed by the Allegheny County Prison Employees Independent Union against Allegheny County.

The issue before Arbitrator McCloskey was whether the County violated the seniority provisions of the cba when it assigned an employee to light duty and gave him work schedules and pass days that had been denied to more senior employees.

Because of a work related injury, Samuel Pastore was assigned to light duty positions, first as a security camera monitor and later in Internal Affairs. He was designated as a "Floater" and was granted an ongoing Monday through Friday 7:00 am to 3:30 shift with Saturday and Sunday as his "pass days" or days off. The dispute in this case arose when the Union claimed that Pastore's light duty assignment did not entitle him to bypass the bidding process.

The County argued that it retained the managerial prerogative to create light duty assignments, and that this right included "those tangential terms and conditions of employment which might otherwise constitute bargainable items ...." While agreeing that the creation of light duty assignments were a managerial prerogative, the Union asserted that shift assignments were still subject to the cba.

Arbitrator McCloskey sustained the grievance, concluding that the County could not award Pastore work schedules or pass days that had been denied to more senior employees.  The County sought to vacate the award, but the trial court upheld it in all respects. The County appealed to the Commonwealth Court which has now affirmed.

Applying the "essence test" the Court concluded :

The County exercised its managerial prerogative and assigned Pastore to a light duty position; Pastore was designated as a Floater while holding that position, and that status did not change.Pursuant to the CBA, officers who are Floaters express a preference for shift and pass days based on seniority. Because Article XXX provides for correctional officers in a light duty status to express their choice of shift and pass days according to their seniority and because Article XXVIII allows Floaters to express their preference for pass days which are awarded based on seniority, the CBA arguably addresses the situation of assigning shift and pass days to a Floater on light duty and subjects that situation to the seniority bidding process. Thus, the Arbitrator's Award, which relies on these provisions, is rationally derived from the language of the CBA. Moreover, the Arbitrator's Award does not direct the County to cease assigning Pastore the light duty position, nor does it necessarily eliminate Pastore's Saturday/Sunday pass days. Rather, the Award directs the County to cease assigning Pastore work schedules or pass days while denying those days to more senior members. The Arbitrator's interpretation can be reconciled with the language of the CBA, and it is not the role of this Court to override that determination by reinterpreting the CBA. Accordingly, we may not vacate the Award. [footnote omitted]

The Court's decision can be found here.

Two recent cases discuss the appropriate standard of proof, progressive discipline and just cause

Two recent cases, reported by Minnesota's Bureau of Mediation Services, address the question of the appropriate standard of proof in a discharge case.

In Hennepin Healthcare System, Inc., grievant had been dismissed from his position as a Protection Officer in the Hennepin County Medical Center, allegedly for striking a patient. At the arbitration hearing, the Union argued that the Medical Center should be held to a "clear and convincing evidence" standard in its effort to prove just cause.

Arbitrator David S. Paull agreed, noting:

Since the issue is the propriety of Mr. Williams’ discharge, the appropriate standard of proof is, as the Union suggests, clear and convincing evidence. Pursuant to this standard, the County is obligated to supply sufficient proof to show that the existence of its assertions of fact is highly probable. The standard is equally applicable to the Union with regard to its affirmative allegations.

Finding that the Medical Center had met this burden is establishing the facts of the incident, Arbitrator Paull turned to the appropriateness of the penalty. While recognizing that
the parties had agreed on a system of progressive discipline, Arbitrator Paull nevertheless found the facts sufficient to warrant an exception to progressive discipline if the discipline otherwise met the standard of just cause. Concluding that it did, he observed:

First, the nature of the conduct was both inappropriate and flagrant. In striking the patient while all of his limbs were in restraints, Mr. Williams clearly violated the applicable rules and his training. There is sufficient evidence to connect Mr. Williams’ behavior with his state of mind. The record shows that Mr. Williams was angry about being called in on that afternoon. It is reasonable to conclude that he permitted his anger, at least in some substantial degree, to dictate his actions.
Second, the failure of Mr. Williams to admit to striking the patient does little to advance his case. The essence of a penalty reduction in a discharge case is the likelihood that the employee will recognize his error and take steps to correct it. The chance of this occurring is lessened, however, in cases in which the employee refuses to admit to the mistake.

Arbitrator Paull found grievant's failure to take responsibility for his actions, his past demonstrations of temper and the nature of the act outweighed his otherwise good record and, accordingly, denied the grievance.

In Minnesota Department of Corrections the grievant, a corrections officer, was dismissed for allegedly assaulting, while off duty, a person engaged in an argument with his sister. Grievant was charged with assault but was subsequently acquitted of this charge.

At the arbitration the Union sought to have the Arbitrator impose a "clear and convincing" standard of proof on the County, both because it involved a termination and also because it involved claims of criminal acts. Arbitrator A. Ray McCoy accepted this position, concluding:

The Union argues that the Employer should be required to meet the clear and convincing standard of proof that it had just cause to terminate the Grievant. The arbitrator believes that a clear and convincing standard of proof is appropriate. Imposition of the clear and convincing standard is often applied in recognition that discharge is the ultimate penalty that can be issued by an employer. Discharge, in an immediate and fundamental way, throws the employee’s life into disarray including future employment prospects. The arbitrator accepts that the Union wishes to impose a very onerous burden on the Employer to make sure the Employer resorts to discharge only in cases where the evidence is clear that the employee engaged in misconduct.

Notwithstanding this burden, however, Arbitrator McCoy found that the DOC had established just cause for dismissal. Initially he noted that the acquittal of the criminal charges did not translate to an absence of just cause. While there may have been reasonable doubt of defendant's criminal responsibility, the Union had not effectively countered the DOC's proof in the arbitration hearing. He wrote:

The arbitrator’s focus, however, was on determining whether the Employer provided clear and convincing evidence that it satisfied its’ contractual “just cause” requirement. In doing so, the arbitrator took great pains to identify any evidence proffered by the Union that demonstrated that the Employer’s evidence should not be relied upon. In other words, casting doubt or blaming someone else doesn’t have the same level of importance in the arbitral proceeding as it might in a criminal one. It was incumbent upon the Union to do more than merely cast doubt or blame others. While it is the Employer’s burden to prove just cause, the Union cannot simply sit back and say our version of the events is more believable. The Union will need to demonstrate that the evidence put forth at the hearing by the Employer is simply inadequate, unreliable, or just plain false.

Finding nothing in grievant's work history to mitigate the penalty of termination, and noting instead prior instances of untruthfulness, Arbitrator McCoy denied the grievance.

Similar issues are addressed in Conflicting views on the appropriate standard of proof in termination cases, Acquitted of criminal charges, but just cause for dismissal, Off duty misconduct, just cause, burden of proof and leniency, Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer, and Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension

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.

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.

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.