Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?

That is the question the  Massachusetts Supreme Judicial Court is considering in a case addressing an effort to vacate an arbitration award reinstating an  officer found by the arbitrator to have been "intentionally misleading ... but less than intentionally false" in his report.

 In an earlier case (Boston v. Boston Police Patrolmen's Ass'n.), the Court  addressed the "rare instances" in which an arbitrator's award must be vacated as contrary to public policy. In that case, the Court overturned as contrary to public policy an arbitrator's award reinstating a police officer found to have engaged in misconduct and to have demonstrated a lack of integrity:

The arbitrator, concluding that DiSciullo, while on duty, had engaged in “egregious” and “outrageous” “misconduct” toward two civilians and that his subsequent reports of the incident over a two-year period demonstrated that he was “lacking” in both “integrity and trust,” nevertheless determined that DiSciullo's actions warranted a one-year suspension without pay, rather than termination.   ...   We granted the city's application for further appellate review.   As we explain below, because DiSciullo's continued employment as a police officer would frustrate strong public policy against the kind of egregious dishonesty and abuse of official position in which he was proved to have engaged, we vacate the arbitrator's award.

In City of Pittsfield v. Local 447 International Brotherhood of Police Officers, the Court is being asked by the City to find that its prior decision creates a "bright line" test that requires the termination of any officer who  "lie[s] about a material matter in a police report."and to hold that an arbitration award ordering the reinstatement of such an officer is contrary to  public policy.

The award in issue is one decided by Arbitrator Michael Stutz, reinstating a Pittsfield police officer who had been dismissed for stating in a report that he had removed a prisoner from his vehicle “for her safety.” In fact, he had removed her from his vehicle after she had been arrested for shoplifting to allow the store security department to photograph her. Arbitrator Stutz found the report "intentionally misleading ... but less than intentionally false." He also noted that grievant had admitted during the Department's internal investigation and at the arbitration hearing that he had removed the prisoner from his vehicle to allow her picture to be taken, not for her safety, and acknowledged that he should not have done so.  He concluded:

... I find that the seriousness of the grievant's admitted inaccuracy was not so dishonest that it was a capital offense, and, therefore, there was no just cause to terminate for three misleading words in his arrest report.
Nonetheless, the misleading report was a serious offense that calls for progressive discipline. The grievant received a three-day suspension in 2011 and, more recently, warnings. Therefore I will return him to the three-day suspension level of progressive discipline. 

The City sought vacate the award as contrary to public policy. The Superior Court declined to vacate the award. (here). It noted initially that:

...the distinction between "untrue and intentionally misleading" and "intentionally false" escapes me. It seems to me, that if a statement is untrue and intentionally misleading, it is by definition intentionally false.

Nevertheless, the Court refused to vacate, observing:

The City argues that public policy not only permits but requires Eason's termination. It
claims that any lie, be it big or small, absolutely disqualifies a police officer from continuing to
serve in his position, and that any act of dishonesty, no matter the circumstances, requires
dismissal. However, such a "bright line" rule has evidently not been consistently applied by the
City, because, as the arbitrator pointed out, the drug task force member who illegally possessed
steroids received only a five-day suspension and is still a member of the department. There
appears to be some force to the Union's argument that this disparity violates "the principle of
uniformity and equitable treatment of similarly situated individuals." Falmouth v. Civil Service
Commission, 44 7 Mass. 814, 824 (2006). Beyond that, if an officer reported for work fifteen
minutes late and told his supervisor that he was late because his child was ill, and if it was later
discovered that he was late because he overslept, the Court would be hard pressed to conclude
that public policy required that he be discharged from his employment. Even (and perhaps
especially) in matters of public policy, there is room for nuance, judgment and discretion. I am
not convinced by the City's argument that termination is required in all cases of dishonesty,
without exception. Given the other facts found by the arbitrator (i.e., that Wynn's decision to
recommend termination may have been influenced by the 2015 incident in which Eason was
exonerated, that other officers received less severe punishment for similar misconduct, etc.), "it
was within the arbitrator's ample authority to conclude that these factors made progressive
discipline rather than termination an appropriate remedy." City of Springfield v. United Public Service Employees Union, 89 Mass. App. Ct. at 260.

On a direct appeal to the Supreme Judicial Court the City has renewed its argument. The Union argues against the application of any "bright line" rule compelling termination in all case involving dishonesty. Relying in part on two out of state decisions addressing similar issues, Kitsap Deputy Sheriff's Guild v . Kitsap Co., 219 P.3d 675 (Wash., 2009), and  State v. Pub. Safety Emp. Ass'n, 257 P.3d 151 (Alaska, 2011), the Union argues:

... there is no well defined, dominant public policy that requires the termination of every police officer who has made a misstatement without regard to the context, consequence, purpose, impact on the public or the department, or the severity of that misstatement . A bright line test holding that any misstatement requires termination of a police officer serves no purpose and unnecessarily deprives an arbitrator of the power to do what the parties have agreed an arbitrator should do: determine the facts and then determine what if any discipline is appropriate .

The briefs of the parties, and the amicus brief of the Massachusetts Police Chiefs Association, can be found on the Court's docket here. A video of the oral argument is available here (City of Pittsfield v. Local 447 International Brotherhood of Police Officers SJC-12450 Argue Date: Monday May 7, 2018)

  Update: The SJC has affirmed, refusing to find the award violates public policy  CITY OF PITTSFIELD vs. LOCAL 447 INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS  The Courts opinion is discussed in Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report

Quick Hits - Arbitrability Issues

Incorporation of AAA Rules gives arbitrator authority to decide question of arbitrability

The Second Circuit has rejected a hospital's efforts to vacate an award of Arbitrator Daniel Brent, concluding that the dispute was properly subject to arbitration

The grievance involved a claim by the New York State Nurses Association that Southside Hospital had, for extended periods of time, required nurses to perform excessive non-nursing duties in violation of the cba. Arbitrator Brent upheld the grievance, finding, contrary to the position of the hospital, that the matter was properly before him. The Hospital had claimed that the matter should first have been addressed by the Committee on Nursing Practice provided for in the cba. Arbitrator Brent found that efforts to rectify the situation through the Committee had been unsuccessful and that the Union was "entitled to an impartial determination of the language of Article3.10" which provided that nurses "should not be required to perform non-nursing functions as a part of their assigned duties ... "

The Hospital sought to vacate the award and the Union sought to confirm it. The District Court adopted the Report and Recommendations of the magistrate and confirmed the award (here). The  Second Circuit has now affirmed, (here) finding that the cba's express incorporation of "the existing rules of the American Arbitration Association" empowered the Arbitrator to decide the issue of arbitrability and that "the arbitrator's decision reflects a plainly reasonable application of the CBA, for reasons lucidly explained in the magistrate judge's thorough January 26, 2017 report and recommendation, which the district court adopted in its entirety."


Successor ordered to arbitrate claim that it failed hire employees allegedly terminated by predecessor


Business Resources and Security Services USA ("BRSS") was a subcontractor performing security services at a site in Washington D.C.  Preeminent Protective Services, Inc. took over the subcontract and, as required by the cba between BRSS and SEIU Local 32BJ, offered employment to the BRSS employees at the site and assumed the cba.  The status of two BRSS employees, however, was the subject of dispute. Preeminent claimed the two employees had been dismissed by BRSS prior to the time it took over the subcontract. SEIU claimed that Preeminent had treated these two as having transferred and had begun paying them. The Union sought to arbitrate what it claimed was Preeminent's termination of the two employees.  Preeminent refused, and the Union brought an action to compel arbitration.

The District Court granted the Union's request to compel arbitration. Service Employees International Union Local 32BJ v. Preeminent Protective Services, Inc. The Court determined:

In this case, Preeminent's and the Union's quarrel is not about whether the parties entered into a valid, enforceable contract, or whether the arbitration clause in the contract applies to the parties. Instead, Preeminent raises a threshold question of whether the officers were Preeminent employees, and posits that they were not because they were dismissed by BRSS, making the Union's claim against Preeminent untenable. ... The Union maintains that the officers were not dismissed by BRSS and that they were therefore Preeminent employees who were wrongly discharged by Preeminent.... Analysis of the principles summarized by the Supreme Court in AT&T Technologies counsel that the question is properly for the arbitrator to decide.

Noting that it was not predetermining the final decision, the Court analogized the case to one involving a dispute about whether an employee was probationary and therefore excluded from arbitration. In this case, the arbitrator could decide whether the employees had ever become Preeminent's employees, and determine which entity had terminated them.

FLRA "reexamines" approach to procedural arbitrability review

In United States Smal Business Administration and American Federation of Government Employees Local 3841 the FLRA has "reexamined" its approach to handling challenges to an arbitrator's ruling on procedural arbitrability issues.  Pointing to its decision in Indep. Union of Pension Emps. for Democracy & Justice, the Authority noted that it had previously found that "essence" challenges to an arbitrator's award provided no basis for finding an award deficient. In its SBA decision the Agency has now concluded that:

we now reexamine our precedent and hold that parties may directly challenge arbitrator's procedural-arbitrability determinations on essence grounds. Consequently, we will no longer follow Agency decisions holding otherwise.

Applying the  new standard to the case before it, the Agency determined that Arbitrator Barton Bloom's decision that the grievance before him was procedurally arbitrable "conflicts with the plain wording of the parties agreement."  Accordingly it set aside Arbitrator Bloom's award that while the Union had not complied with the fourteen-day the limit in the agreement to submit a form to FMCS, its grievance was nevertheless arbitrable because the Agency had waived the right to contest the timeliness of the submission by accepting and processing the form without objection, and failed to notify the Union that it had added the issue of timeliness to the FMCS form. Moreover, the Aritrator concluded that in any case, the grievance was procedurally arbitrable because the parties had a practice that allowed the Union not to strictly comply with time limits. Finding the Arbitrator's decision contrary to the language of the cba, the Authority noted:

arbitrators may not look beyond a collective-bargaining agreement- to extraneous considerations such as past practice - to modify an agreement's clear and unambiguous terms. 

 Update: Arbitrator Bloom’s award is available here. The discussion of the timeliness issue appears at pages 45 to 52. 

While the FLRA decision concludes that the Arbitrator's decision on procedural arbitrability failed "to draw [its] essence" from the provisions of the cba, the Award does set forth a detailed analysis of the cba's language on timeliness. 

 After reviewing the precise language of the parties agreement, Arbitrator Bloom determined:

The contractual provision requiring strict observance of time limits set forth in the Arbitration Procedure, however, is not absolute. As provided in Article 40, Section 1, adherence to the contractual time limits is expressly made subject to the existence of any mutual agreement to the contrary. Thus, if there exists an agreement between the Union and the Agency authorizing a relaxation of strict adherence to the time limits, the Union’s failure to abide by the required time limits might not result in forfeiture of its right to arbitration. To hold otherwise would be to ignore the plain language of the Master Agreement.

Noting that "there are numerous ways in which an agreement can be reached,” Arbitrator Bloom concluded :

... by virtue of their long-standing, uniform past practice of not requiring strict compliance with the time limit for submitting request for a panel of arbitrators, the parties have mutually agreed that strict observance of the time limit for submitting the request for panel of arbitrators and fees is not required.