Quick Hits: A "toxic" employee, a teacher and a traffic stop, and correcting a mistake

Termination of "toxic" employee upheld

Arbitrator Craig Allen denied the grievance filed on behalf of an employee of the Ohio Department of Natural Resources contesting her termination. The grievant was terminated for two alleged offenses. The first was a time sheet violation. It was alleged that she had left 15 minutes early for lunch but had falsely recorded the departure time on her time sheet. This occured two weeks after she had received a three day suspension, apparently also related to time and attendance policies. The second related to a statement she made when she was being placed on administrative leave for investigation of the time sheet incident. It was essentially undisputed that grievant said during her departure "Don't worry, I'm not going to shoot up the place." The Union contended that management had "dramatically taken out of context" this incident while the employer argued that it was the action of a "defiant employee with disdain for her work place or her co-workers."

Denying the grievance, Arbitrator Craig concluded that the evidence supported the Employer's position. While noting that grievant was upset about a merger of departments that had taken place, he found "the Grievant was a toxic force in the work place." Concerning grievant's comment that "she would not shoot up the place," the Arbitrator found that, while the police officer who was present to escort grievant from the workplace did not find the statement serious enough to file a report, "others viewed it as a threat." Finding the discipline progressive and for just cause, the Arbitrator denied the grievance. His award can be found here.


Tenure charge against teacher who drove away from traffic stop rejected

Arbitrator Ruth Moscovitch rejected the efforts of the Bernards Township School District to terminate a teacher for driving off from a traffic stop before being released by the police.

The teacher had briefly left her mother in law in her house while she went to the store. The mother in law had Parkinson's and some dementia. The teacher was in the process of cooking and had gone to the store to pick ups missing ingredient and expected to be home before the timer went off on food she was cooking. On her way home form the store, the teacher was stopped by the local police for speeding. She became agitated and explained that she needed to get home to check on her mother in law. Although the police officer told her she was not free to leave, she sped off and drove toward her home. The police pursued her and forced her to stop. She was handcuffed and placed in the back of the police car. A search of the vehicle turned up a small "one hitter" pipe of the type that could be used to smoke marijuana. The teacher admitted having the pipe but claimed she had found it in the truck her husband used for work and had intended to dispose of it. She was arrested and and charged with eluding, possession of drug paraphernalia and several traffic offenses. After the superintendent saw the video taken by the police of the incident he filed tenure charges against her and sought her termination. Arbitrator Moskovitch found that while the teacher's conduct demonstrated poor judgment and warranted a two month suspension, termination was too severe. She concluded:

There is no dispute about what happened on March 22, 2017: Respondent admits, and the arresting officers’ testimony and videos confirm, that she drove away from police during a traffic stop after being ordered not to do so, and that a metal pipe – of a type the officers identified as used for smoking marijuana – was found in her purse. There is also no dispute that this conduct showed very bad judgment on her part. This was conduct unbecoming a teacher. The issue before me then is whether the District has sustained each and every part of the ten charges brought against Respondent, and whether the proven misconduct warrants the ultimate penalty of loss of Respondent’s tenure as a teaching professional. I find that it does not.

Arbitrator Moscovitch's award can be found here.


Correction of an over 25 year old error not barred by recognition clause

Arbitrator Robert Grey resolved a dispute between the City of Scranton and the Fraternal Order of Police, Lodge No. 2 concerning the question of pension eligibility for hires after July 1, 1998. The precise issue was whether the "new" hires were required to reach the age of 55 before becoming eligible to receive a pension. The factual background of the dispute is lengthy, but, in sum, the issue before the arbitrator was whether the City's effort in 2015 to correct what it claimed was a typographical error in a 1987 Ordinance creating the new plan improperly deprived the Union of the opportunity to bargain a change in benefits. The Union asserted that it had never given final agreement to the 1987 change, and that, in any case, the 1987 ordinance did not contain the age 55 requirement. The City claimed both that the Union had in fact agreed to the change in the plan, and that the omission of the language from the 1987 ordinance was a typographical error.

Arbitrator Grey concluded that the evidence did not support the contention the the Union had finally agree upon the change. However, he found further that, because of legislation passed by the state in 1986, the Ciy was privileged to make a one time change in the pension plan without securing the Union's agreement. The case then turned on whether, as the City maintained, the omission of the age 55 requirement was simply a typographical error or, as the Union argued, the omission of the age 55 requirement had been intentional and the City's recent effort to modify the plan was a unilateral effort to modify the existing plan.

Reviewing the facts, Arbitrator Grey concluded that the omission of the language from the 1987 Ordinance was an inadvertent error, and that the 2015 Ordinance simply corrected the language to reflect the original proposal. Regarding the Union's claim that its members had been prejudiced by the City's actions and its long delay in making a correction he noted:

The Union's arguments of prejudice, for which it had the burden of proof, are not persuasive on the record presented. The Union and its counsel were admittedly aware, ab initio in 1987, that the 1987 Ordinance did not contain the conditionally agreed to minimum age eligibility requirements, nor years of service eligibility requirements. ... It is undisputed that they did not bring this to the attention of the City until 2015. Moreover, there is no record evidence that any bargaining unit unit member detrimentally relied upon the lack of a minimum age eligibility requirement, or years of service eligibility requirement, when applying for, accepting, leaving or remaining in employment the City's Bureau of Police.

Denying the grievance, he concluded:

The City established an Act 205 Revised police pension by enacting the 1987 Ordinance. The record does not support the Union's position that the City intentionally omitted Section 2 from the 1987 Ordinance. ... Because the 2015 Ordinance related back to the ambiguous 1987 Ordinance establishing the revised pension plan, pursuant to Act 205 the 2015 Ordinance was also not subject to bargaining.

Arbitrator Grey's award can be found here.