Arbitrator finds allegations insufficient to support termination even if proven, orders reinstatement before hearing.

The Nassau County (NY) District Attorney's office has challenged a decision of Arbitrator John Sands ordering the reinstatement of  Investigator (and Local Union President) Michael Falzanaro. Nassau DA challenges ruling that her office improperly disclosed wiretap

The DA's office had a wiretap in place in connection with an investigation of municipal corruption. In August 2016, while monitoring certain calls pursuant to an eavesdropping warrant, investigators overhead the subjects of the warrant mention grievant's name. The DA's office applied for and received permission to amend the original warrant to include grievant and others for violating NY Penal Law prohibiting divulging an Eavesdropping Warrant. In June 2017, a grand jury returned sealed indictments against several individuals, not including grievant. On June 29, 2017 the DA's Office terminated grievant's employment.

The termination was based on four specific charges. Those charges read:

1. On or about July 16, 2016 Chief Investigator Daniel Rizzo via a communication email to all Investigators assigned to the Nassau County District Attorney's Office, instructed that only assigned investigators, having received wiretap monitoring instructions relative to Confidential Investigation PC 16-56, were to be permitted in the hallway outside of the monitoring location in the basement of 272 Old Country Rd., Mineola NY On or about August 22, 2016, Michael Falzarano was in violation of that directive. Again, on or about August 29, 2016, Michael Falzarano was observed in the vicinity of the hallway just outside the monitoring location. Both August incidents were in violation of explicit instructions to avoid the location used to intercept and monitor communications authorized by court-ordered wiretaps.

2. On or about August 15, 2016, Michael Falzarano did have a conversation with a target of Confidential Investigation PC 16-56, in which Michael Falzarano did, in sum and substance, advise the target that the Public Corruption Bureau was conducting an investigation utilizing wiretaps. The substance of that conversation was overheard in a court ordered wiretap, on or about August 18, 2016.

3. On or about March 24, 2017, at a meeting of the Nassau County District Attorney's Investigators, at which Michael Falzarano was present, said investigators were instructed to make every effort to avoid any contact with  either witnesses or juror assembled for the Special Grand Jury to hear evidence for case referenced above. On or about April 5, 2017, Investigator Michael Falzarano disobeyed such directives and was in the vicinity of the Special Grand Jury and a witness for that proceeding.

4. On or about and between August 15, 2016 and February 13, 2017, without good cause and contrary to directives, Investigator Falzarano engaged in a course of conduct seeking to continually interact with investigators assigned to the above referenced investigation in an effort to elicit information regarding the details of the investigation and to influence the investigators' conduct by referencing prior favorable labor relations between the NCDA investigators staff and the targets.

Ruling on the Union's Motion to Dismiss, Arbitrator Sands agreed with the Union that the employer violated NY law by divulging the existence and content of the eavesdropping warrant to other than law enforcement officers, including the County's outside labor counsel, the grievant, the Union and Union counsel, and the Arbitrator. He rejected the County's argument that the subsequent approval of the County's ex party request for permission to disclose justified its actions, noting that the request did not cure the earlier violation and allowed the County to "cherry pick" the items it wanted to disclose. He noted further that the legality of the warrant had not yet been resolved in the criminal proceedings that arose out of the indictments, and that Falzanaro had not been indicted in the criminal proceeding, either because "NCDA did in fact seek Falzanaro's indictment but failed to convince the grand jury or (b) that NCDA did not seek his indictment because it did not believe its evidence provided sufficient support for that effort."  Accordingly, and concluding that evidence unrelated to the warrant could have, but did not, form the basis for discipline (whether or not ultimately deemed supported by just cause) at the time it occurred rather than ten months later, he granted the Union's motion to dismiss Charges 1 and 2.

Regarding Charges 3 and 4, Arbitrator Sands observed that they related to matters well after the intercepted communications and "it is not clear in either case that the charge rests on excluded evidence or its fruits." He concluded that "I accordingly cannot dismiss them out of hand without having received evidence to the contrary, which I would expect a hearing to address."

Nevertheless, he found that the allegations did not support grievant's immediate termination. On Charge 3, he noted "Even if NCDA were to prove that grievant's having been 'in the vicinity' violated its instruction, I cannot see how that would support the discharge penalty NCDA imposed."

Similarly, with regard to Charge 4 he found:

Given grievant's role as president and the issue of NCDA's potential discrimination in assignments of IPBA Board members, his interacting with bargaining unit members concerning that subject matter and referring to positive labor relations issues would appear to fall within the ambit of protected union activity. To sustain this charge as an appropriate exercise of managerial authority NCDA would have to adduce affirmative evidence of grievant's improper intent to interfere with the effectiveness of NCDA's investigation or operation or his actions’ having actually done so. Charge 4 does not reflect such an allegation; indeed, the grand jury did in fact issue the indictments NCDA sought notwithstanding anything grievant had done. I accordingly conclude that Charge 4 too does not support the immediate termination of grievant's employment that NCDA imposed. I shall therefore direct NCDA to restore grievant to employment with full back pay and benefits during the pendency of this proceeding. 

The Nassau County DA is quoted in the article linked above as describing the award as ""really unconscionable." Her office has argued to the Court that Falzanaro wasn't fired until after the probe was over, and that the eavesdropping evidence was no longer secret.

Update: A court has vacated the Arbitrator's award , the case will be submitted to a new arbitrator for resolution. Judge rules DA doesn't have to rehire special investigator 

Staffing issues, contracting out bargaining unit work, and a duty to bargain

Each of these topics is the subject of recent  court action.

In MultiCare Health Systems v. Washington State Nurses Association, the Ninth Circuit reversed a District Court order vacating certain remedies ordered in an award of Arbitrator Douglas P. Hammond. The Union's grievance claimed that Multicare violated the terms of a settlement agreement requiring MultiCare to provide employees with  a 15 minute break periods for every four hours worked. Arbitrator Hammond sustained the grievance and ordered MultiCare to cease using a "buddy system" as a means of providing breaks and to "staff, schedule and assign a nurse to serve as a reserve or float nurse with the precise assignment of relieving other scheduled nurses for their authorized breaks."

MultiCare sought to vacate the award, asserting that the arbitrator exceeded his authority and that the issue of increased staffing had been raised by the Union during negotiations leading to the cba and had been rejected. The District Court (here) vacated that portion of the Arbitrator's award precluding the use of the buddy system as inconsistent with the rejection of that proposal during negotiations. On the staffing issue, the Court remanded the matter to the Arbitrator for further consideration, noting:

The Court requested additional briefing on the interpretation of the term "increased staffing" because the record "does not adequately reflect what `increased staffing' entails." Dkt. 33 at 6. Based on the parties' responses, the Court concludes that interpretation of the term is a matter for the Arbitrator. It is unclear whether this issue alone is sufficient to vacate the Award, but, because the Court is vacating the Award on the previous issue, the Court simply points out that additional interpretation would assist a reviewing Court in determining whether the remedy derives its essence from the parties' agreements. In other words, additional consideration and discussion linking the remedy to terms of the contract may be helpful for future review.

 On the Union's appeal, the Ninth Circuit reversed, noting on the "buddy system" issue:

The district court erred in the application of those principles when it determined that the essence of the Agreement did not allow the Arbitrator to exclude use of the buddy system. The Arbitrator did find that MultiCare wanted the Agreement to specifically permit use of the buddy system. However, he also found that WSNA opposed inclusion of that specific provision, and it was left out. By contrast, the Agreement did provide that whatever method was used, nurses were to have their fifteen-minute breaks and that the staffing plan could not be violated. The Arbitrator determined that, as a matter of fact, the buddy system was unable to meet those conditions in practice and was "nonviable." Indeed, the buddy system violated the very purpose (essence) of the Agreement. The district court erred when it overruled the Arbitrator's decision to enjoin the practice that violated the Agreement.

The Court also rejected the District Court's decision on the staffing question, concluding:

The district court opined that "increased staffing" was itself an ambiguous phrase that should have been considered by the Arbitrator. If it is an ambiguous phrase, the Arbitrator implicitly resolved the ambiguity when he made his award. In any event, if the basis of an award is ambiguous, that does not permit a district court to vacate the award itself. ...  Again, we see no basis for overturning the Arbitrator's award.

In PPL Electric Utilities Corporation v. International Brotherhood of Electrical Workers Local 1600 the District Court for the Eastern District of Pennsylvania rejected both the procedural and substantive objections of PPL's complaint seeking to vacate the award of Arbitrator John M. Skonier.

 Arbitrator Skonier upheld a grievance filed by the Union claiming that PPL violated its cba by contracting out bargaining unit work. Arbitrator Skonier found that PPL "failed to live up to the promises it made to the Union" when it negotiated a Letter of Understanding that was made part of its cba. PPL maintained that it had complied with all of the obligations of the LOA and that its actions were consistent with the cba. It also denied making any guarantee of increased union membership or assurance that it would not contract work. Arbitrator Skonier ordered the Company to "cease and desist from violating" the LOA and to provide the Union "with a sum of money equivalent to what the initiation fees and dues would be as though eight employees had been hired."

In its complaint to vacate the award, PPL alleged that the arbitrator "displayed manifest disregard for the parties agreement," relied on erroneous cost projections, and "based the Award on his own moral judgment and notion of fairness."

Rejecting the Company's claim, the District Court concluded that the Arbitrator's reliance on parol evidence was not improper: 

The Arbitrator also relied on PPL's representations in previous negotiation discussions as PPL's "indicia of intent" to conclude PPL violated Exhibit P. Specifically, the Arbitrator found PPL represented to Local 1600 it would increase the number of bargaining unit positions and reduce contractors. ... "PPL's prior representations were offered to Local 1600 to explain PPL's intent when making the proposal [resulting] in the [Letter of Understanding]." (Id.) PPL argues the Arbitrator's use of prior communications not included in the final agreement violates the Parol Evidence Rule and the Arbitrator's use of these communications was unnecessary given the CBA's unambiguity. ... But, our Court of Appeals clearly states it is appropriate to look beyond the face of a CBA given it is not an ordinary contract for the purchase of goods and services. Southeastern Pennsylvania Transp. Authority v. Brotherhood of R.R. Signalmen, 882 F.2d 778, 784 (3d Cir. 1989). Our Court of Appeals and several courts of appeals explicitly recognize that it is entirely appropriate to look to parol evidence in the context of interpreting collective bargaining agreements.

The Court also rejected the challenge to the Arbitrator's finding that the Company had not established that its actions were consistent with the cba, observing:

In establishing the four preconditions required before subcontracting bargaining unit work (Article II, Section 5D) were interrelated with Article VI, Section 1D, and Exhibit P, the Arbitrator concluded there were limits to PPL's subcontracting right and stated: "the parties negotiated the contracting provision to allow the Company to contract under certain conditions, while allowing the Union to protect bargaining unit work and membership."...  So, while PPL may subcontract bargaining unit work — as evidenced by its subcontracts with PPL Solutions and NCO — PPL's right to subcontract is not unlimited. Based on PPL's limited right, the Arbitrator was correct to balance PPL's subcontracting rights with the rights of Local 1600 employees.

Finding the Arbitrator's award drew its essence from the terms of the cba,  the Court declined to disturb his decision.  [A similar dispute involving Rockwell Collins and IBEW is addressed in Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies]

In Citgo Petroleum Corp. v. United Steelworkers Union, Local No.7-517, Citgo seeks to vacate an award by Arbitrator Alan J. Cook. The Steelworkers grievance claimed that Citgo's use of outside contractors violated the terms of its cba. The management rights provision of the cba recognized the Company's right to "hire contractors" but the contract also provided that the Company wouldn't displace any unit employee due to the use of contractors.

Arbitrator Cook found that the Union had failed to show that the use of contractors in this instance violated the terms of the contract or caused harm to the bargaining unit. He noted that he was not free to ignore the language of the cba and that if he did ignore "the clear and unambiguous terms of the Contract, the Award could be set aside by a court of law." Nevertheless, his opinion continued:

 However, there is another aspect of this case that must be considered. The National Labor Relations Act places on employers a mandatory duty to bargain with authorized employee representatives on subjects that include rates of pay, wages, hours of employment and other conditions of employment (29 U.S.C. Sec. 151 et seq.).

He ordered Citgo to bargain with the union over the issue of the transfer to contractors of work performed previously by the bargaining unit performing work and retained jurisdiction "for ninety days of the date of this Award to give the parties whatever assistance they may need in implementing the terms of the Award."

In its complaint  Citgo asserts that the Arbitrator "had no authority to address this or any other statutory issue" and that his "erroneous conclusion" that Citgo violated a duty to bargain did not draw its essence from the cba. 

Recent Awards - Insubordination, out-of-title work, protected activities, and untruthfulness

Police officer's insubordinate action didn't justify termination

Arbitrator Don B. Hays modified the discipline imposed on a San Antonio police officer who had been accused of insubordination. Grievant was schedule to retire in July of 2017. He planned to utilize his accrued time of to carry him through that date, and to work full time at another job until his retirement became effective. Outside employment required the approval of the Chief. He began his outside employment in September of 2016 with the permission if the department. However, his request to continue that outside employment during 2017 was denied. Believing he had  "constitutional right" to continue to engage in the outside employment grievant "defiantly continued" his outside work despite the denial of permission from the department. Ultimately the Chief placed grievant on "indefinite suspension", effectively terminating his employment.

Finding grievant's conduct insubordinate, Arbitrator Hays concluded that termination was too severe. Arbitrator Hays explained:

Although appellant's reason for his refusal appears to be resourceful, it cannot be realistically
compared to a subordinate's justifiable refusal to strictly obey a supervisory directive based on legitimate safety concerns and/or the risk of irreparable harm. Appellant's potential loss of the USAA job and associated essential outside (second) income does not qualify as a legitimate excuse for such insubordinate actions.
****
On this occasion [Grievant]  was proven to have acted in a patently and punishable insubordinate fashion. However such clearly uncharacteristic behavior appears from the credible and preponderant evidence to have been an “isolated act," mistakenly undertaken in good faith by an experienced, long serviced highly qualified and devoted SAPD police captain; one who had absolutely no proven personality tendencies or disciplinary history which legitimately questions this loyal officer's allegiance to SAPD authority or Chief McManus. While we in no way find [grievant's] isolated insubordinate behavior, to be forgivable, as discussed hereinabove when trying to determine an appropriate disciplinary response, we find Chief McManus' imposition of "summary termination" to be deficient of what we deemed to be essential evidentiary support.

Arbitrator Hay's award can be found here.


Compensation for out-of title-pay

Arbitrator Richard Curreri has upheld a grievance filed by the Warertown(NY) Professional Firefighters Association seeking compensation for demoted Captains. The Union claimed that the former Captains were still expected to perform their former duties but were not being compensated appropriately for performing what was now out-of-title work. Arbitrator Curreri found "an explicit or implicit assignment of the demoted Captains to the work they previously performed ...."He rejected the argument of the City that any informal expectations were not the same as an "assignment" His award can be found here.

Discrimination because of union activities 

  Two recent awards involve discipline claimed to be because of the grievants' union activities.

 In IAFF, Local 1693 and City of Holyoke, Arbitrator Mary Ellen Shea sustained a grievance challenging the suspension and demotion of a Fire Department Captain, and Local Union President, after an investigation into his actions at the scene of a fatal fire.  Arbitrator Shea rejected the City's claim that the investigation was part of a "routine" post incident analysis, and found that "the evidence demonstrates that the investigative procedures and the investigative report ... were not adequate or sufficiently complete to prove the allegations" against the grievant. Concluding that the investigation was a pretext, she found that the City had violated the cba's prohibition on discrimination because of Union activities (in this case grievant's comments in the press critical of the Mayor's and Chief's decisions concerning decisions concerning staffing, see e.g. Questions of response to Holyoke fire arise following brownout of engine)


In Wilkes-Barre Police Benevolent Association and City of Wilkes-Barre, Arbitrator Thomas Leonard sustained a grievance, overturning the discipline of the President and Vice President of the local PBA. The discipline arose because of comments on the PBA's Facebook page critical of certain decisions of the Mayor and police management. Rejecting the City's claim that he postings "violated numerous sections of the department's general orders, Arbitrator Leonard concluded:

This is a case where the City has taken disciplinary action against [grievants] for their exercise of protected rights. While the City does have a managerial interest in maintaining the appropriate access to police reports and having its orders followed, the PBA also has rights. The PBA postings, whoever made them, stated a sincere employee interest in safety of officers. The postings may have been harshly worded, but the law gives leeway to union officials in such instances. The City has not proven that the Facebook postings violated its General Order 1.11 on Social Media and
Networking. The policy itself allows the PBA to use Facebook to engage in “legitimate labor endeavors and/or business." Therefore, even though the Facebook postings were critical of Chief Lendacky and Commander Foy, sometimes in forceful terms, the postings were done with the interests of the officers' safety in mind, which is certainly a legitimate labor endeavor of the PBA in its role as the exclusive representative of the police officers of the City of Wilkes-Barre

Officer's "Untruthfulness" proved just cause for termination

Arbitrator John Barnard denied a grievance filed on behalf of a San Antonio police officer. Grievant had been placed on "indefinite suspension "(i.e dismissed) for allegedly being untruthful during an investigation of his activities in connection with performing inspections of commercial vehicles during his off duty time. Finding merit to some, but not all, of the charges, Arbitrator Barnard noted:

The cornerstone of any sworn police officer is that such officer is to be truthful at all times. That didn't happen here, and as such, there is no alternative but to uphold the indefinite suspension of an officer such as [grievant] who betrays the trust of both the department and the general; public, for whom he is trusted to serve. 

Arbitrator Barnard's award can be found here.