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:
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
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.
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
No comments:
Post a Comment