Court vacates award reinstating police officer who struck handcuffed individual

A court has vacated the award of Arbitrator Jane Wilkinson reinstating Seattle police Officer Adley Shepherd. City of Seattle, Seattle Police Department v. Seattle Police Officers' Guild, Arbitrator Jane Wilkerson and Adley Shepherd  Officer Shepherd was dismissed following the Department's determination that he had used excessive force when he struck a handcuffed individual while attempting to place her in his patrol car. The interaction was captured by the in-car video.

Arbitrator Wilkinson concluded that Officer Shepherd violated the Department's Use of Force Policy. She found, however, that termination was too severe and not proportionate to the offense. Because of this lack proportionality, together with other mitigating factors, she reduced the termination to a fifteen day suspension.

In its decision, the Washington  Superior Court determined that the award was contrary to public policy and, accordingly, vacated it.

The Court found that the policy against police use of excessive force was explicit, dominant and well-defined. Turning to the question of whether the award reducing the termination to a fifteen day suspension was contrary to that policy, the Court concluded:

Allowing this imposed discipline to stand, which includes reinstatement of Officer Shepherd, sends a message to law enforcement officers and to the public that the use of excessive force on handcuffed or restrained persons is allowed in situations when officer patience is stretched thin or when an officer feels stinging pain inflicted by a handcuffed suspect who is no longer threatening immediate harm or when there are other options for control available. 

It is not clear from the opinion whether any discipline short of termination would address the Court's public policy concerns.

This award was one of the factors US District Court Judge James Robart relied on in concluding that the City was not in effective compliance with the consent decree entered into by the City and the US Department of Justice following a DOJ claim that the Seattle Police Department had engaged in a pattern and practice of excessive force. US v. City of Seattle. Judge Robart was critical of the City's efforts to ensure continuing accountability, particularly regarding the provisions contained in the most recent cba with the police union concerning the arbitration process for police discipline. The Court noted:

Because the CBA eliminates reforms instituted by the Accountability Ordinance and leaves the old arbitration regime "materially unchanged" (see U.S. Resp. at 3), the court finds that the City and SPD have fallen out of full and effective compliance with the Consent Decree concerning SPD discipline and accountability. Before the court will terminate the Consent Decree as it pertains to accountability, the City must bring itself into compliance in this area and then sustain that compliance for two years. (See Consent Decree ¶¶ 229-30.)

Both the City and the Community Police Commission have filed responses to the Court's concerns. Seattle’s police-reform plan is ‘busywork,’ citizen panel says in asking federal judge to reject proposal.  (Previous filings in the case are discussed here and here.)

Res judicata, CWA and Southwestern Bell, and a question of timeliness of a Loudermill hearing

Arbitrator's award given res judicata effect in subsequent suit for recovery of misappropriated funds

Peter Gibson was fired from his job after he was accused of receiving almost $200,000.00, allegedly from funds misappropriated by his ex-wife from their employer and directed to an account that he and his ex-wife shared. That termination was submitted to arbitration, and Arbitrator Mattye Gandel issued an award finding "beyond a reasonable doubt" that, while Gibson may not have participated the misappropriation of funds, he "knew about the fraudulent wire transfer, maybe not that day, but certainly in the following days and months and benefited from the fraudulent wire transfer" Accordingly he found just cause forth termination and denied the grievance.

Subsequently the company filed suit against Gibson, seeking recovery of the funds. It sought summary judgment, arguing that the arbitrator's award should be given preclusive effect. The Court granted the Motion for Summary Judgment. Sterling Equipment, Inc. v. Gibson 

The Court found that while Gibson was technically not a party to the arbitration his interests were represented by the Union, that the issues were actually litigated in the arbitration  and that the facts found by the arbitrator were "dispositive" of the claim that Gibson had been unjustly enriched by receipt of money belonging to the Company. The Court concluded:

In short, because the arbitration award is entitled to preclusive effect, and the Arbitrator specifically found that Gibson benefitted from his wife's fraudulent wire transfer, SEI is entitled to summary judgment on its claims of money had and received (Count I) and unjust enrichment (Count II). See Manganella v. Evanston Ins. Co., 700 F.3d 585, 591 (1st Cir. 2012) ("Generally, final arbitral awards are afforded the same preclusive effects as are prior court judgments."); Miles v. Aetna Cas. & Sur. Co., 412 Mass. 424, 427 (1992) ("An arbitration decision can have preclusive effect in a subsequent suit between the same parties or their privies."). The court will schedule a hearing to determine the amount of SEI's damages

Communications Workers of America and Southwestern Bell Telephone

Two recent decision address arbitration issues arising between CWA and Southwestern Bell Telephone Company. 

The Fifth Circuit denied the appeal of CWA from the District Court's dismissal of its complaint for lack of jurisdiction. Communications Workers of America v. Southwestern Bell Telephone Company CWA had sought to litigate an alleged violation of a provision of its cba with Southwestern concerning "Responsible Union-Company Relationship" which it asserted required the parties to deal with each other "in good faith and respect." The Union alleged that layoffs announced by the Company were not based on a lack of work, and that the Company was subcontracting work the laid off employee were trained and qualified to perform. The responsible relationship provision of the agreement was not subject to arbitration, and the Union's sued to enforce its claim that the Company had violated that  provision.

 The Company sought dismissal of the complaint, arguing that the disputes underlying the complaint were addressed in other provisions of the cba that were subject to arbitration and that the Union had failed to exhaust the grievance and arbitration procedure. The District Court agreed and dismissed the complaint. Here and here

The Fifth Circuit affirmed, concluding:

  To recap, the Union's federal complaint identifies two areas of conduct that are covered by the arbitration provision: Southwestern Bell's plan to lay off Union employees and Southwestern Bell's plan to contract out their jobs. Furthermore, the relief the Union requests is reinstatement of the laid off Union employees and a declaration that Southwestern Bell's layoffs and contracting out violated the CBA. In short, notwithstanding the Union's framing of its case, the resolution of the Union's lawsuit is impossible without resolving the merits of issues that are plainly within the CBA's agreement to arbitrate. See Nat'l Football League Players Ass'n v. Nat'l Football League, 874 F.3d 222, 227 (5th Cir. 2017) ("[W]here the contract provides grievance and arbitration procedures, those procedures must first be exhausted and courts must order resort to the private settlement mechanisms without dealing with the merits of the dispute." (quoting United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37 (1987))). Accordingly, the magistrate was correct in finding that the Union's lawsuit is "clearly and unambiguously challenging" conduct covered by the CBA's grievance and arbitration provisions

In a different case,  the District Court has rejected CWA's claim the Arbitrator Samuel J. Nicholas acted in contravention of AAA Rule 40 and the final and binding language of the cba when, on the Company's Motion for Reconsideration, he revised his award to correct what he described as a technical error. Arbitrator Nicholas' original award can be found here. The corrected award here. The correction changed the award from one sustaining the grievance to one denying it. The error related to the Arbitrator's reliance on a document he initially described as limiting the scope of work of Premises Technicians. The Company's Request for Reconsideration pointed out that the document in fact related to a different bargaining unit. The Arbitrator acknowledged his error and agreed that this correction changed his analysis. 

CWA filed a complaint seeking to vacate the modified award and seeking to enforce the initial one.

 The District Court adopted the Report of Recommendation of the magistrate rejecting the Union's claim (here) and concluded (here) that the Arbitrator had not exceeded his powers in applying Rule 40 to correct a technical error and that his interpretation of that rule was supported by Fifth Circuit precedent. 

Update: The Fifth Circuit affirmed the District Court, concluding that because Arbitrator Nicholas' award stemmed from a colorable interpretation of the parties' CBA, including AAA Rule 40 which was included in the Agreement, the award drew its "essence" from the parties' agreement and was not in excess of his authority.

Arbitrator rejects claim that Sheriff's Deputy was terminated prior to Loudermill hearing 

Arbitrator Peter Prosper rejected a claim that the Flagler County Sheriff's Office terminated the employment of a Deputy before giving him a Loudermill hearing. Coastal Florida Police Benevolent Association and Flagler County Sheriff's Office 

On April 16, 2018, the Deputy was responding to a request for assistance call when he passed a vehicle entering the wrong way on to Interstate 95. He did not take action regarding the car but continued on to his original destination. While the Deputy was there, a call came from Dispatch about a two car collision on I-95. The Deputy responded to that call. While at the scene, he informed his Commander that the had previously passed one of the vehicles involved entering the wrong way onto the highway. An investigation was conducted, and a report presented to the Undersheriff. 

On July 9, 2018, a Notice of Intent to Discipline was presented to the Deputy with a recommendation for termination. The Deputy was given 10 working days (until July 23) to schedule a Loudermill hearing. The hearing was conducted on July 20, and on July 24 the Deputy was informed that his termination "stands as recommended."

The Union filed a grievance challenging the termination on the merits but also asserting that the Sheriff's Office had made the decision to terminate before the Loudermill hearing.

That argument appears to be based in part on a press release (here) issued by the Sheriff's Office on July 9. The full release is not reproduced in the award, but is headlined "FCSO Deputy Terminated After Failure to Take Action to Prevent Fatal Crash." The Union also pointed to what it described as the admissions of both the Sheriff and the Undersheriff that they had made the decision to terminate on July 9.  

In rejecting the Union's argument, Arbitrator Prosper noted that the text of the release indicated that the Deputy had been served a  "notice of intent to discipline with termination," and that he had been continued on payroll until July 23.  He therefore concluded that the Deputy had not been terminated until the end of the Loudermill hearing.

On the merits, the Arbitrator converted the termination to a suspension without pay. 

Contracting and erosion of the bargaining unit

Right to subcontract didn't authorize eliminating unit positions by attrition

The District Court for the District of New Jersey has denied a request by ExxonMobil Research and Engineering to vacate an award of Arbitrator Joyce M. Klein.

The dispute arose over the Union's claim that ExxonMobil violated the cba when it permanently contracted certain bargaining unit positions the Company claimed were non core. While the contract allowed the Company to contract work, it required notice to the Union and prohibited  layoff of unit employees qualified to perform the work and required the recall of any such employee prior to the contracting. 

The Company notified the Union that it intended to contract certain non core positions through attrition in order to enable it to focus on core research and development positions.

Arbitrator Klein sustained the Union's grievance, relying in large part on the cba's recognition clause:

The Company seeks to retain an employee workforce consisting of "core" employees while permanently contracting other non-core positions included in the recognition clause of the parties' Agreement.) 
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At issue is whether the Company has the authority pursuant to Article XVIII to contract out those positions on a permanent basis. Although Article XVIII was drafted broadly providing the Company with the authority to “let contracts," it was not designed to be without limitation.
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Permanently contracting positions covered by the Recognition Clause has the effect, over time, as additional positions are contracted permanently, of changing the scope of the Recognition Clause and potentially eroding both the coverage and size of the bargaining unit. While the concept of unit erosion is not expressly included in the bargaining unit, the Recognition Clause expressly covers all of the job classifications "listed in Exhibit ll and who are based at the Clinton, New Jersey facility." While Article XVIII permits the Company to contract the work performed by these positions without express limitation, these positions remain covered by the collective bargaining agreement and bargaining unit members may work in those positions in the event of demotion or layoff. As a result, both Article XVIII and the Recognition Clause prohibit the permanent contracting of these positions.

The Union sought to confirm the award while the Company sought to vacate it. The Court confirmed the award. Independent Laboratory Employee's Union, Inc v. ExxonMOBIL Research and Engineering Co. Recognizing the limited scope of review of arbitration awards, and noting that it was not passing judgment on the wisdom of the arbitrator's conclusion, the Court found that the award was a good faith interpretation of the cba and was therefore entitled to be confirmed:

Whether or not this Court agrees with the Klein Award's analysis, the arbitrator's good faith interpretation of the CBA is reasonable, especially in light of the history between ILEU and EMRE on which the arbitrator relied. The Klein Award cites the 1977 comments of an EMRE vice president, stating that EMRE will hire independent contractors only when operational needs require and will never seek to reduce the number of ILEU-covered employees. Id. at 6. Those comments are consistent with the 1983 arbitration award which explains that the CBA's language does not justify a program of using the attrition of union employees to permanently replace covered positions with non-union contractors. See Florey Award at 13-14. EMRE's present plan directly conflicts with both its vice president's 1977 comments and the Florey Award's 1983 CBA interpretation. Given this history, the Court cannot say that the Klein Award "is so completely irrational that it lacks support altogether," or is "totally unsupported by principles of contract construction and the law of the shop." Sutter, 675 F.3d at 219-20; Akers, 712 F.3d at 160 (quoting Ludwig Honold, 405 F.2d at 1128).

Update: The Third Circuit has affirmed the District Court decision, similarly rejecteing the argumets for vacating the award.  here