Arbitrator awarded back pay but no reinstatement - rejects request to reconsider decision
As noted in an earlier post, Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay, Arbitrator Eric Lindauer found that the City of West Linn, Oregon had just cause to terminate the employment of a police officer because his racially charged Facebook posts violated the City's Social Media policy and because he "could reasonably be perceived as having racially biased views that were disrespectful of African-Americans." The Arbitrator found that the postings "brought discredit to himself, the Department, and the City of West Linn ... ."
However, because he further found that the City failed to promptly address the issue and "must bear some responsibility for its failure to take active steps, as required by Department Policy, to require [grievant] to remove the offending content from his facebook page," he ordered the City to provide back pay to the grievant from the time of his termination until the date of the Arbitrator's decision.
The City filed a request with the Arbitrator for reconsideration of that backpay order. The City claimed the Arbitrator's back pay remedy exceeded the authority granted to the Arbitrator in the parties' cba and the issue submitted to him by the parties. The stipulated issue was:
Whether the City of West Linn had just cause to terminate the grievant ... . If not, what is the appropriate remedy?
The City argued that once the Arbitrator found just cause for termination he was without authority to award back pay.
Arbitrator Landauer rejected the City's request. Citing judicial approval of the need for flexibility in remedies, and recognition of the use of the admittedly unusual remedy of back pay without reinstatement in several published texts, he noted:
Based on these findings which reflected serious procedural failings on the City’s part, the Arbitrator could have overturned the Grievant's termination and reinstated him. However, based on the serious nature of the Grievant's Facebook postings, the Arbitrator did not find this to be an appropriate solution to the problem. Instead, the Arbitrator crafted a remedy that would allow the termination to stand while also awarding back pay to the Grievant, which appropriate [sic] rejected the City's failure to correct [grievant's] inappropriate Facebook postings and instead allowed them to continue.
Arbitrator Landauer also clarified that his award of back pay was limited to lost wages, not including PERS contributions or fringe benefits. He noted that since the termination was upheld, grievant was not entitled to receive fringe benefits that would ordinarily have accrued as part of a back pay award.
Arbitrator Lindauer's Decision on the Motion for Reconsideration can be found here.
Arbitrator's reliance on external law
Arbitrator George Fleischli largely sustained a grievance filed by IBEW Local 51 alleging that Ameren Illinois Company dismissed an employee without just cause. His award can be found here. The grievant's employment was terminated for claimed violation of the Company's Workplace Violence Policy, including having a weapon on Company premises. Arbitrator Fleischli found that while grievant did violate the "letter" of the Company rule by having a weapon locked in his vehicle on Company property, the rule was "illegal and unenforceable" against grievant because of the provisions of the Illinois Concealed Carry Act.
The Arbitrator noted a "longstanding debate" among arbitrator's on when, if ever, it is appropriate to consider outside law in connection with the interpretation and application of a cba where the cba "does not purport to incorporate outside law." However he concluded that the Union was not asking him to ignore any provision of the cba (distinguishing the Seventh Circuit's decision in Roadmaster Corp. v. Prod. and Maint. Emp. Local 504) and that the law was clear and served to prevent the Company from applying the rule against grievant because he was in possession of a concealed carry license.
Ameren sought to vacate the award, arguing that the award was in excess of the arbitrator's authority in that it did not draw its essence from the cba. The District Court granted that request, (here) concluding:
Despite finding that the Grievant's possession of a firearm in his vehicle technically violated the Policy ... , the Arbitrator determined that the Company could not enforce its Workplace Violence Policy in light of the Concealed Carry Act. Award at 44. The Court recognizes that the Arbitrator did not specifically find good cause to terminate pursuant to the Workplace Violence Policy. See Arch Ill., 85 F.3d at 1293 (noting that a court can refuse to enforce the award if the arbitrator found just cause to discharge but then stated "something to the effect of `fairness dictates'" that the employee should not have been discharged). Nonetheless, the Arbitrator's award unambiguously reflects that the Arbitrator based his decision on noncontractual grounds. Id. (a court cannot reject an award unless the arbitrator's decision "unambiguously reflect[s] that the arbitrator based his decision on noncontractual grounds").
In this case, the Arbitrator unambiguously based his decision on his interpretation of an external law, the Concealed Carry Act. Nothing in the parties' Agreement allowed the Arbitrator to consider external law. In fact, the Agreement specifically provided that the Arbitrator could not "amend, delete from[,] or add" to the Agreement. Agreement Art. III, Sec. 2. The Arbitrator's award exceeded his authority because the parties' Agreement did not allow the Arbitrator to consider external law.
Arbitrator's reliance on external law
Arbitrator George Fleischli largely sustained a grievance filed by IBEW Local 51 alleging that Ameren Illinois Company dismissed an employee without just cause. His award can be found here. The grievant's employment was terminated for claimed violation of the Company's Workplace Violence Policy, including having a weapon on Company premises. Arbitrator Fleischli found that while grievant did violate the "letter" of the Company rule by having a weapon locked in his vehicle on Company property, the rule was "illegal and unenforceable" against grievant because of the provisions of the Illinois Concealed Carry Act.
The Arbitrator noted a "longstanding debate" among arbitrator's on when, if ever, it is appropriate to consider outside law in connection with the interpretation and application of a cba where the cba "does not purport to incorporate outside law." However he concluded that the Union was not asking him to ignore any provision of the cba (distinguishing the Seventh Circuit's decision in Roadmaster Corp. v. Prod. and Maint. Emp. Local 504) and that the law was clear and served to prevent the Company from applying the rule against grievant because he was in possession of a concealed carry license.
Ameren sought to vacate the award, arguing that the award was in excess of the arbitrator's authority in that it did not draw its essence from the cba. The District Court granted that request, (here) concluding:
Despite finding that the Grievant's possession of a firearm in his vehicle technically violated the Policy ... , the Arbitrator determined that the Company could not enforce its Workplace Violence Policy in light of the Concealed Carry Act. Award at 44. The Court recognizes that the Arbitrator did not specifically find good cause to terminate pursuant to the Workplace Violence Policy. See Arch Ill., 85 F.3d at 1293 (noting that a court can refuse to enforce the award if the arbitrator found just cause to discharge but then stated "something to the effect of `fairness dictates'" that the employee should not have been discharged). Nonetheless, the Arbitrator's award unambiguously reflects that the Arbitrator based his decision on noncontractual grounds. Id. (a court cannot reject an award unless the arbitrator's decision "unambiguously reflect[s] that the arbitrator based his decision on noncontractual grounds").
In this case, the Arbitrator unambiguously based his decision on his interpretation of an external law, the Concealed Carry Act. Nothing in the parties' Agreement allowed the Arbitrator to consider external law. In fact, the Agreement specifically provided that the Arbitrator could not "amend, delete from[,] or add" to the Agreement. Agreement Art. III, Sec. 2. The Arbitrator's award exceeded his authority because the parties' Agreement did not allow the Arbitrator to consider external law.
On the Union's appeal, the Seventh Circuit has reversed the District Court and enforced the Arbitrator's award. Ameren Illinois Company v. IBEW, Local Union 51 The Court did so, however, despite its conclusion that the Arbitrator's effort to distinguish the Seventh Circuit decision in Roadmaster was a "distinction ... without a difference." It found language in the cba, "overlooked" by both the Arbitrator and the District Court, which incorporated external law into the cba and "firmly establishes the intent of the parties to bring external law such as the Concealed Carry Act within the scope of the bargain."
In light of this conclusion, it found that courts have "no further role to play" in reviewing the terms of the award or whether the Arbitrator correctly applied the law. Accordingly it enforced the Arbitrator's award.
Social media, law enforcement officers and the First Amendment
Several recent cases address these issues.
In Rice County Minnesota and Minnesota Public Employees Association, a case arising under the Minnesota Veteran's Preference Act, Arbitrator Jeffrey Jacobs, sitting as Hearing Officer, denied a grievance challenge the demotion of the veteran. The veteran was employed as a Sergeant with the Rice County Sheriff's Department. The demotion to Deputy arose out of certain comments made by the veteran in response to newspaper and social media reports concerning a settlement arising from the shooting of Philando Castile. The statements are summarized in Arbitrator Jacob's award:
In Rice County Minnesota and Minnesota Public Employees Association, a case arising under the Minnesota Veteran's Preference Act, Arbitrator Jeffrey Jacobs, sitting as Hearing Officer, denied a grievance challenge the demotion of the veteran. The veteran was employed as a Sergeant with the Rice County Sheriff's Department. The demotion to Deputy arose out of certain comments made by the veteran in response to newspaper and social media reports concerning a settlement arising from the shooting of Philando Castile. The statements are summarized in Arbitrator Jacob's award:
There was a claim made by Ms. Reynolds and the matter was settled for a large sum of money. The Star and Tribune story was about that settlement and showed a picture of Ms. Reynolds leaving a building that ran along with the story. In response to that story and on the Star and Tribune’s Twitter page, the veteran posted the following message: “She’ll have that [i.e. the money from the settlement] spent in 6 months on crack cocaine.” There was another post only seconds later that read: “I hope she loses all her State and County Aid now that she has this cash.” This was posted under the veteran’s Twitter handle ... . The evidence also showed that he repeated his earlier comments approximately 20 minutes later with a post at 10:15 p.m. that read as follows: “She needs to come off County and State Aid now that she has some cash. It’ll be gone in 6 months on crack cocaine.” There was no mention in this post either regarding the use of public money or the settlement itself nor of the need to protect the Ms. Reynolds child. It was, as discussed herein, a statement made without knowing Ms. Reynolds and based on assumptions the veteran made regarding her status as a recipient of such aid and her YouTube posts showing her smoking what appears to be a marijuana joint. [footnotes omitted]
Applying the standard imposed by the Act, which Arbitrator Jacobs found equivalent to just cause, the Arbitrator found no basis to upset the Sheriff's decision. In doing so he rejected the veteran's claim that his comments were protected by the First Amendment. Analyzing the case law on the First Amendment rights of public employees, Arbitrator Jacob concluded:
The question is whether his posts were protected by the First Amendment based on this unique record. For all the reasons set forth above, even if one gets to the question of the First Amendment and the balancing test required by Pickering, these posts were not shown to be protected and that they violated clear policies in place.
In Clackamas County Peace Oficers' Association and City of West Linn (in which the remedy issue is discussed above) Arbitrator Lindauer similarly rejected a claim that grievant's Facebook postings were protected by the First Amendment, finding:
In evaluating an individual's free speech rights in the context of employment, theArbitrator must balance the parties' interests relative to the subject speech:
*** speech that is disruptive of the workplace or demoralizing and reflects the expression of a private complaint is not protected speech, whereas commenting on a matter of public interest is protected speech but must be balanced against the government's interest in the effective and efficient fulfillment of its responsibilities to the public."
Elkouri and Elkouri,
In Clackamas County Peace Oficers' Association and City of West Linn (in which the remedy issue is discussed above) Arbitrator Lindauer similarly rejected a claim that grievant's Facebook postings were protected by the First Amendment, finding:
In evaluating an individual's free speech rights in the context of employment, theArbitrator must balance the parties' interests relative to the subject speech:
*** speech that is disruptive of the workplace or demoralizing and reflects the expression of a private complaint is not protected speech, whereas commenting on a matter of public interest is protected speech but must be balanced against the government's interest in the effective and efficient fulfillment of its responsibilities to the public."
Elkouri and Elkouri,
How Arbitration Works,
(BNA 8th Ed.) Page 19-3
Police officers, as public employees, are held to an even higher standard. "Public service employees are often held to a higher standard because of the public employer's interest in maintaining the public trust." Id., at 15-17. In their post-hearing briefs, both parties cite case law and other authorities requiring an analysis of whether the employee's interest in the speech outweighs the employer's interests in maintaining efficient operations and its reputation. This is the crux of the First Amendment analysis in this case: Did [grievant's] interests in his Facebook postings outweigh the City's interests in maintaining efficient operations and the public trust? In the Arbitrator's opinion, the answer is no.
***
In the Arbitrator's opinion, [grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.
Police officers, as public employees, are held to an even higher standard. "Public service employees are often held to a higher standard because of the public employer's interest in maintaining the public trust." Id., at 15-17. In their post-hearing briefs, both parties cite case law and other authorities requiring an analysis of whether the employee's interest in the speech outweighs the employer's interests in maintaining efficient operations and its reputation. This is the crux of the First Amendment analysis in this case: Did [grievant's] interests in his Facebook postings outweigh the City's interests in maintaining efficient operations and the public trust? In the Arbitrator's opinion, the answer is no.
***
In the Arbitrator's opinion, [grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.
In Veronica Cedillo and The City of Mission, Texas, Arbitrator Richard R Brann overturned the indefinite suspension (i.e. termination) of an officer, finding the termination "excessive under the circumstances of her good-faith exercise of her First Amendment Rights and her otherwise exemplary work record." The decision was reported in the progresstimes Arbitrator: Mission shouldn't have fired cop for contacting 'Anonymous' Facebook page
The officer, based on information she had seen in a group message among other officers and a conversation she had had with another officer, and after receiving an assurance that she would remain anonymous, used Facebook Messenger to send a private Facebook message to an entity known as "Anonymous RGV." The message read:
Well, I just don't wanna get in trouble, but just so y'all know... The current mayor, Beto Salinas was wasted/drunk and crashed inside the city limits...single vehicle accident at about 3am this morning. However, it is unknown if he called the chief of police directly & had the Sgt. take care of it. So, he was allowed to call someone to go pick him up & was not charged/arrested for DWI. He was already picked up, by the time the wrecker arrived at the scene. The officer only did an accident report... which is totally unfair/wrong!!
The officer, based on information she had seen in a group message among other officers and a conversation she had had with another officer, and after receiving an assurance that she would remain anonymous, used Facebook Messenger to send a private Facebook message to an entity known as "Anonymous RGV." The message read:
Well, I just don't wanna get in trouble, but just so y'all know... The current mayor, Beto Salinas was wasted/drunk and crashed inside the city limits...single vehicle accident at about 3am this morning. However, it is unknown if he called the chief of police directly & had the Sgt. take care of it. So, he was allowed to call someone to go pick him up & was not charged/arrested for DWI. He was already picked up, by the time the wrecker arrived at the scene. The officer only did an accident report... which is totally unfair/wrong!!
Despite the assurance of confidentiality, the Mayor learned of the Facebook message and asked the Chef to "check into it." Officer Cedillo was interviewed and acknowledged sending the message.
Officer Cedillo appealed the indefinite suspension that was ultimately imposed, arguing that her reporting of what she believed to be a possible attempt to cover up a criminal violation was a matter of public concern protected by the First Amendment.
Noting that the case was a "challenging" one, Arbitrator Brann analyzed the case in light of prevailing law. He found that the Officer had not used any confidential information in making her claim, that she did not make the report in her official capacity, that while her report did contain some inaccuracies (including the allegation that the Mayor was "wasted/drunk") it was made in good faith. He concluded:
In light of all the evidence, ... the delicate balance required under the Supreme Court's Pickering must be struck in favor of Officer Cedillo.
Nevertheless, while finding the "gist" of Officer Cedillo's message was protected speech, her hyperbole and statements that went beyond her knowledge justified some penalty. Accordingly he ordered her reinstatement with back pay less a ten day suspension.
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