Arbitrator reduces suspension of officer involved in Tamir Rice shooting

Arbitrator Daniel Zeiser has issued an award reducing a ten day suspension to five days for a police officer for conduct related to the shooting of Tamir Rice. Cleveland Police Patrolmen's Association and City of Cleveland.  The grievant was not the officer who shot Rice, and the discipline did not involve the shooting directly. Arbitrator Zeiser noted specifically:

The Arbitrator believes it is important to note that the discipline and this grievance, while they stem from the tragic shooting of Tamir Rice, are not based on the actual fatal shooting. That is to say, the Grievant was not disciplined for any use of force that resulted in Tamir Rice’s death. The use of force issue was determined by the Cuyahoga County Grand Jury and Prosecutor. The discipline in question here was set forth in the three charging letters:

Specification #1: On November 22, 2014, you…did not employ proper tactics when you operated the zone car up to what was reported to be an armed suspect thereby violating the Policy of General Police Order 2.1.01. 

Specification #2: On November 22, 2014, you… Failed to report your arrival time to the radio dispatcher immediately upon arriving at the location of your radio assignment. (JX 5-7). 

Simply put, the Grievant was suspended for using improper tactics and not reporting his and Loehmann’s arrival at Cudell. The issue for the Arbitrator is whether the Employer proved it had just cause for the 10 day suspension.

After addressing, and rejecting, procedural and timeliness objections by the City, the Arbitrator found that the City had established the facts alleged in the specifications and concluded that there was just cause for discipline. He found that grievant was aware that the situation he approached was not an active shooter one and he should have waited for back up to arrive. Additionally the arbitrator found that there was a reasonable basis for the City's claim that grievant had pulled his vehicle too close to the scene. However, he also concluded that these offenses did not fail within the type of offense that fell within Category III of the City's disciplinary matrix, which provided for a minimum of a ten day suspension. Observing that "employing improper tactics, while not as serious as the conduct listed in Group III, is more than a minor violation and warrants more than a warning." Accordingly, he reduced tie suspension from ten to five days. 

Another case, also arising from conduct related to a fatal shooting, but not the shooting itself, is addressed in Reaction to police discipline award highlights mixed expectations about the issue to be decided

Court confirms arbitrator's overtime award - doesn't find "pyramiding"

An earlier post (Pyramiding overtime - Employer challenges arbitrator's award) discussed an award  of Arbitrator Mathew Frackiewicz sustaining a grievance Armstrong County Memorial Hospital claimed was improperly seeking to "pyramid" overtime.

The dispute concerned the pay treatment for an employee who worked during Christmas week 2016. Christmas that year fell on a Sunday. Pursuant to the cba, several holidays, including Christmas, "are also counted as hours worked for the purpose of overtime." Employees were to receive holiday pay at the straight time rate for holidays not worked. Employees who worked the holiday would receive, in addition to the holiday pay, time and one-half for all hours worked. Grievant received holiday pay for Christmas day. In addition, because she worked that day, she received pay at time and one-half for the hours actually worked. The dispute between the parties turned on whether the eight hours of holiday pay for Christmas, which she would have received whether she worked or not, were to be counted toward the 40 hours worked in a week.

Sustaining the grievance, Arbitrator Frackiewicz concluded;

[T]he 8 hours of holiday pay for Christmas are paid at the straight time rate, as distinguished from hours actually worked on Christmas, which are paid atbthe premium rate. Adding straight time hours on Christmas to the straight time hours worked on other days that week does not constitute pyramiding in the sense of counting hours paid at premium rate toward the threshold for a weekly overtime premium.

As indicated in the earlier post, the Hospital announced its intention to seek to vacate the award. The District Court has now rejected that effort. Armstrong County Memorial Hospital v. Pennsylvania Association of Staff Nurses & Allied Professionals.

Reviewing the award, the Court found the award:

...is rationally derived from Section 10.3 of the CBA, which spells out that hours paid for contractual holidays, including Christmas, are counted for purposes of overtime. Additionally, although not specifically addressed in detail in the Arbitrator's decision, this Court finds further justification for the position of the Arbitrator in the language of Section 18.4 which states that "[n]urses who are scheduled and who work on a holiday . . . will be paid time and one-half for all hours worked and will receive holiday pay as well." This language explicitly explains that nurses will receive holiday pay as well as time and a half when they work on a holiday. The plain language of Section 10.3 (along with Section 18.4) more than adequately supports the conclusion reached by the Arbitrator, is rationally derived from the language of the CBA, and the decision of the Arbitrator draws its essence from the agreed upon language of the CBA.

The Court similarly found no basis for the Hospital's claim that the arbitrator had exceeded his jurisdiction "[b]y ignoring the mandate of Section 10.5 of the CBA that pay not be made more than once for the same hours," noting that the language was not as straightforward as the Employer claimed.

Finding the Arbitrator's award rationally derived from, and based on, the CBA, the Court denied the request to vacate.

City will appeal reinstatement of police officer dismissed for improper use of force

The City of Duluth, Minnesota has declared its intention to seek to vacate an award of Arbitrator Mario Bognanno reinstating a City police officer who had been dismissed after an incident in which he was alleged to have dragged an uncooperative subject. The facts of the case were largely undisputed. The incident was recorded on several officers' body cameras. (At least one of the videos was publicly released after the award and is available at Video shows Duluth police officer dragging handcuffed man, slamming head into door)

The officers had been dispatched to the scene on a report of trespassers near Duluth's skywalk system. Upon arrival, they met two apparently intoxicated individuals. After some interaction, grievant advised one of the subjects that he would be issued a ticket for trespassing. After some further interaction, the subject stated "I want to be arrested right ... now." The subject was handcuffed and grievant and another officer began walking him out. The subject fell to the floor, saying he wouldn't make it easy for them. Grievant reached down, grabbed the handcuff chains and began dragging the subject away. While being dragged, the subject hit his head on a doorway.

An investigation was subsequently conducted by the Department, and grievant's employment was terminated. The termination was based on the Chief's conclusion that the use of force was contrary to Department policy, grievant's prior history of excessive use of force (a one day suspension for punching another subject several times in the head), and the Chief's belief that it was likely that grievant would, in the future, engage in similar conduct.

The termination was grieved and submitted to Arbitrator Bognanno for resolution.

Applying the "Seven Tests" of just cause, Arbitrator Bognanno found that discipline was warranted. He concluded:

At the time of the Houle Incident, the prevailing circumstances were as follows: Mr. Houle was intoxicated; Mr. Houle did not pose a threat to either the officers or to himself; Mr. Houle’s size and weight relative to that of the police officers was such that he could have been picked up and walked or drag-walked to the parking ramp; there were no prevailing exigent concerns; the circumstances were not rapidly changing, obviating the need for split-second decision making; and it was not shown, by credible evidence, that PO Huot and his fellow officers needed to immediately respond to or assist with any other officers 911 calls.

Based on this discussion, PO Huot’s dragging of Mr. Houle constituted an unreasonable use of force in violation of Policy...

While recognizing that "in this day and age, such conduct can evoke public tumult, which is a major concern to the public employer and rightly so," he concluded that termination was too severe a penalty.

He noted that grievant's prior use of force incident (the punching incident) was more severe and grievant received only a one day suspension. He also pointed to two other incidents, not rising to the level of discipline, in which grievant's use of force was questioned. Arbitrator Bognanno observed:

The departmental coaching that followed these events was dearly warranted and doubled as a “heads-up,” if you will. [Grievant]missed this “heads-up” or signal because shortly after the Dunphy Incident, he decided to recklessly drag Mr. Houle, and by doing so he crossed the unreasonable use of force demarcation line.
The foregoing “heads up” remarks lead to the answer to the Issue Statement’s second question, namely: “If not, what is an appropriate remedy?” The “heads up” signals, an arms-length of training and coaching about the use of force, and the fact that [Grievant] cross [sic]the use of force demarcation line in 2015 and then again in 2017 combined to cause his command staff to speculate, if reinstated, he will cross the line again and, perhaps, with far more damaging and serious consequence. The Arbitrator cannot find fault with this speculation. [Grievant] and his career as a police officer is at a crossroad: Either he takes control of his penchant for misusing vocal and physical force or he will be fired: A third use of force violation would be his last.

The Arbitrator ordered grievant's reinstatement without back pay. His award is available here.

In a press release (here) the City has announced its intent to seek to vacate the award. The release quotes the Mayor as saying:

It is critical to me that we maintain that trust in the relationship between our police department and the community, and that we do everything in our power to build and create better and stronger relationships. This incident is an example of completely unacceptable behavior that as Mayor, I cannot and will not support. I, Chief Administrative Officer, David Montgomery, and Chief Tusken stand together in supporting the decision to terminate this officer as a consequence for his egregious actions. The decision to terminate the officer was made in concert between myself, CAO Montgomery, and Chief Tusken after a careful review of the incident and subsequent investigation.
We will continue to do everything in our power to sustain this termination by pursuing all appropriate legal remedies in response to the arbitrator’s ruling. We remain committed to building an organization that views its roles and responsibilities as a service to the community

Update: The court has denied the City's request to vacate the award. Judge: Duluth police officer to keep job. The Court's order can be found here. The Court of Appeals affirmed that decision here.

Quick Hits - Sex on duty, indemnification, grievance timelines and court actions

Sex on duty and the termination of two police officers

Two San Antonio police officers were placed on indefinite suspension (essentially dismissed) after allegations that they had engaged in sexual relations while on duty and a claim that one had "taunted" the other's wife. The terminations resulted in considerable publicity at the time (SAPD fires officers accused of having sex while on duty), and arbitrators have recently upheld both terminations.

Arbitrator Edward Valverde upheld the termination of one of the officers, finding that evidence presented at the hearing, including text messages exchanged between the two and actions both engaged in to conceal their activity, provided "ample basis" to support the decision to terminate.

Arbitrator William McKee upheld the termination of the second officer who had been dismissed for "taunting" the wife of the other officer after the wife had been arrested for assaulting her.  Arbitrator McKee found that the grievant had attempted to "annoy" the wife by pretending to take photographs of her in the jail cell. He also found that grievant had used the laptop in her patrol vehicle to look up the wife's arrest record "to fulfill her own curiosity." In light of these findings, Arbitrator McKee concluded:

In summary, the Grievant’s actions constituted serious violations. She, while on duty and in uniform, (1) sought out a prisoner for personal reasons and (2) taunted the prisoner by taking or pretending to take photographs. These actions were taken in the presence of the public. [Grievant] continued her campaign against the citizen by using Police Department equipment for personal reasons. I find insufficient reason to overturn the Chief’s decision.

Slightly redacted copies of Arbitrator Valverde's award can be found here, and Arbitrator McKee's here.

Trooper's claim for entitlement to a defense and indemnification of claim against him not subject to arbitration

The Rhode Island Supreme Court has found that a grievance seeking to have the State defend and indemnify a trooper sued in his individual capacity for actions arising from an arrest is not subject to arbitration. State Ex Rel. Kilmartin v. Rhode Island Troopers Association.

State law (and the cba) provide for such indemnification for acts of employees taken within the scope of their employment. The State declined to indemnify, asserting that the trooper's actions "fell 'outside the scope of his employment' and amounted to willful misconduct," an exception to the obligation to indemnify. Declining to order arbitration, the Court held:

A state employee's entitlement to a defense and indemnification is limited to cases in which the conduct giving rise to the suit was performed within the scope of his or her employment and does not fall within the disqualifying factors set forth in § 9-31-9. Whether an employee was acting within the scope of his or her employment, and is therefore entitled to a defense provided by the state, is a question that in the first instance is textually committed to the Attorney General. "The attorney general may refuse to defend an action * * * if he or she determines that * * * [t]he act or omission was not within the scope of employment." Section 9-31-9. The Attorney General's authority to make this determination is statutorily prescribed in §§ 9-31-8 and 9-31-9. Accordingly, this is the controlling law on this issue; it is not a question capable of resolution by an arbitrator. See Rhode Island Alliance of Social Services Employees, Local 580, SEIU, 747 A.2d at 469 (labor disputes and grievances that seek to modify applicable state law are not subject to arbitration because the arbitrator has no power to do so); see also City of Cranston, 115 A.3d at 839 ("[A]rbitration awards that contravene state law are unenforceable because the arbitrator has no authority to make them." (internal quotation marks omitted)). In fact, Article 29.17 is silent as to how, when, and by whom a determination is made that an employee's conduct falls within the scope of employment. We are therefore of the opinion that the issues raised in this case are not arbitrable within the collective bargaining process


When does the time for filing a grievance begin?
  
That was the issue before Arbitrator Mario F. Bognanno in connection with the Union's grievance challenging a three day suspension  The CBA provided that a grievance must be filed "Within twenty-one (21) calendar days after the first occurrence of the event giving rise to the grievance ...." The union claimed that the time period ran from "the last day of the Grievant’s time spent on suspension...." Agreeing with the Employer, (Hennepin County, MN) the Arbitrator found that:

...the purpose of the parties’ inclusion of time limitations in Article 7 of the CBA was to aid in the prompt and equitable settlement of grievances, as well as to minimize the effect of stalled grievances. That being the case, the Arbitrator finds that the County’s interpretation of Article 7, §3, sub. A is, more likely than not, a more accurate reflection of the drafters’ intent. This is to say that the “... first occurrence of the event giving rise to the grievance ...” is when the County issues employee-adverse Loudermill determinations and not after the challenged disciplinary suspensions have been served.

Arbitrator Bognanno's award can be found here.


Actions to confirm/vacate arbitration awards

Several recent filings involve actions to either confirm or vacate arbitrators' awards.

In Procter & Gamble Manufacturing Co. v. Association of Employees of the St. Louis Plant, the Company seeks to set aside an award of Arbitrator Josef Rohlik reinstating an employee who had been dismissed for violation of the Company's lock-out/tag-out rules. Arbitrator Rohlik found grievant had committed a serious violation but concluded that grievant "must have been devastated  by the death of his daughter, which the arbitrator thinks might cloud the thinking of almost anyone." P&G claims hat the arbitrator exceeded his authority by ordering reinstatement despite "an implicit, if not explicit, finding" of just cause.
Complaint, Award

  In Teamsters Local Union No. 42 v. Greater Lynn Senior Services, Inc., the Union seeks to confirm and enforce the award of Arbitrator James Litton upholding a grievance claiming that the Company improperly modified its grace period for late arrivals. Arbitrator Litton ordered the Employer to rescind any discipline imposed based on the reduced grace period  "to the time of any agreement between the parties with respect to a five-minute grace period." While the award notes that the Company asserts that at some point the parties agreed to adopt the shorter time period for tardiness, the Union's complaint denies that it ever entered into such an agreement.
Complaint, Award

In IBEW, Local No. 46 and Local No. 76 v. ADT, LLC d/b/a/ ADT Security Services the Union seeks to confirm and enforce an award of Arbitrator Michael Cavanaugh finding the Company violated the cba by moving from weekly pay to bi-weekly pay and ordering it to return to weekly pay "as soon as it is practicable."
Complaint