Sunday, April 15, 2018

Two public policy reversals, last chance agreements, and call out pay

Minn. court overturns award reinstating police officer accused of failing to report use of force

The Minnesota Court of Appeals has refused to uphold an arbitrator's award reinstating a police officer who was dismissed for alleged use of excessive force and for failure to properly report the use of force. City of Richfield, v. Law Enforcement Labor Services, Inc..  The officer had responded to a report of a number of people driving erratically. During the course of his investigation grievant pushed one of the individuals he was speaking with and hit him in the back of his head. He did not file an incident report concerning his use of force. After a video of the incident appeared on Twitter, the department began an investigation and ultimately dismissed the officer both for his use of force and his failure to report that use of force. The matter was submitted to Arbitrator Charlotte Neigh who issued an award finding that force grievant used was not excessive, but that he had failed to properly report his use of force. She found that the failure was not intended to conceal the incident,which would have been misconduct, but was a lapse of judgement which was a performance issue. She ordered grievant's reinstatement subject to a three day suspension for the unacceptable performance. The City sought to vacate the award. It did not challenge the Arbitrator's finding on the excessive force issue, but argued that "an arbitration award reinstating an officer who failed to report his use of force—after he had been trained, retrained, counseled, and disciplined on this topic—violates public policy." The district court denied the City's request, but the Court of Appeals reversed. It found:

Reinstating [grievant]—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD's legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force. Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.

  The Court noted that this was only the second time it has vacated an arbitration award reinstating a police officer as contrary to public policy but determined that:

To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.

NY Appellate Division rejects "irrational," "unsustainable" award reinstating employee dismissed for sexual harassment

Reversing the lower court decision confirming the award, New York's Appellate Division has refuse to enforce an arbitrator's award reinstating an individual who had been dismissed for alleged sexual harassment, finding the award contrary to public policy. Matter of New York City Transit Auth. v. Phillips. Concluding that the award effectively prevented the employer from complying with its legal obligation to protect against sexual harassment in the workplace the Court found:

... the arbitrator's decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that [grievant] did not violate the workplace sexual harassment policy. Among the express findings of the EEO — with which the arbitrator was "compelled to agree" — were that [grievant] offered to act as Melendez's "sugar daddy"; that [grievant] stated, in the presence of others, that he would "stay in bed all day" if he had a woman like Melendez and would "oil her down"; and that [grievant] placed his wallet on the ledge and stated in the presence of others, "I would give all of this" for Melendez.
Given such findings, it is unfathomable that the arbitrator could find that [grievant's] conduct did not violate the workplace policy against sexual harassment, which expressly defines sexual harassment to include behavior which "has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive working environment." This disjunction between the arbitrator's findings and his summary conclusion that [Grievant's] behavior nonetheless did[sic] "did not rise to the level" of sexual harassment is fundamentally irrational ...

The Court found that the arbitrator's modification of the termination to a "meager 10-day suspension" was contrary to the well recognized policy of the State and "cannot stand." It remanded the case "to a different arbitrator to enter a finding that respondent Aiken subjected Melendez to inappropriate and unwelcome comments of a sexual nature in violation of petitioners' sexual and other discriminatory harassment policy, and to pass upon the appropriateness of the penalty of termination."

The Court had earlier found erroneous the arbitrator's finding that the Union's action's of placing grievant on Union leave effectively precluded discipline Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Last Chance Agreement makes dispute not subject to arbitration

An earlier post (Last Chance Agreements- Arbitrability of triggering event) discussed a decision of the Western District of Pennsylvania concluding that, in the absence of specific language rebutting the presumption of arbitrability, a Last Chance Agreement didn't preclude the arbitration of the factual question of whether the grievant committed the act alleged to be in violation of the agreement. An Illinois Appellate Court has now reached a different conclusion on arguably similar facts. The Court's unpublished decision can be found here.  The Court concluded:

...the LCA explicitly stated that, were [grievant] to violate department rules again, he could not invoke the CBA’s procedure, including its final grievance-resolution step of arbitration, to fight the matter. Rather, any violation–any “non­ compliance”–would result in termination of his employment, leaving no room for debate. The LCA repeated this again two more times when it clarified that the “non-compliance” may be related to any directive, standard or protocol issued by [grievant's] supervisor, deputy chief or any administrator, and when it ordered him, “in the presence of” the Union and Employer, to acknowledge his understanding of this. And, most evident here is the paragraph of the LCA appearing immediately above its signature lines, which stated:
"As a condition of your acceptance of these conditions relative to this 'last chance agreement' and your acknowledgement [sic] of your agreement to waive all rights to grieve this corrective action, please sign this document along with your union representative."
Undeniably, Jordan and the Union, along with Employer here, signed this LCA and waived all rights to arbitration in any regard with respect to the issue of his employment and, likewise, its termination. The presumption of arbitration has been overcome.

Minimum hours guarantee applies "per call-out" 

The Pennsylvania Commonwealth Court has refused to vacate an arbitrator’s award finding that grievants were entitled to two minimum call out guarantees when they were called out twice on a holiday. City of Pittsburgh v. Teamsters Local Union No. 249 The cba provided that employees called out on a holiday were to be paid three times their hourly rate for all hours worked, and were guaranteed a minimum of eight hours at the triple time rate. Grievants, snow plow operators, were called out at 10 pm and worked through 10 am the following day (Presidents' Day). They received 12 hours pay at the triple time rate. They were again called out at 6 p.m. and worked for four hours. They were paid an additional four hours at the triple time rate. They grieved, claiming that they should have received an eight hour minimum for the second call out. The issue was presented to Arbitrator Christopher Miles who upheld the grievance. Rejecting the position of the City that the employees were entitled to one eight hour minimum per holiday, Arbitrator Miles concluded that nothing in the language of the contract specifying that the minimum guarantee was limited to one call out per holiday. Finding the language applies "per call-out" he sustained the grievance. The Common Pleas Court confirmed the award, and the Commonwealth Court has now affirmed that decision. The Commonwealth Court held:

Viewing the award as a whole, the Arbitrator based his decision on the language in Section 11.B. He did not add new words to the CBA; he interpreted it. So long as his interpretation is rationally derived from the CBA, it must be upheld. Here, we must conclude it is. The Arbitrator explained that, in his view, Section 11.B applied when an employee is "called out to work on a holiday." (Arbitrator Decision at 4.) This mirrors the language found in the second sentence of Section 11.B. While the City's interpretation is equally persuasive, as stated above, our standard of review is limited to determining whether the Arbitrator's interpretation is rationally derived from the CBA. "It is not necessary that this Court agree with an arbitrator's interpretation of a CBA for it to be sustained." ...

Arbitrator Miles' Award can be found here.

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