Another case on zero tolerance, just cause, and a failed drug test

 A recent post discussed a challenge to an arbitrator's award where the Company claimed that the arbitrator ignored the violation of its zero tolerance policy for drug use and improperly reinstated an employee, albeit without back pay. Zero tolerance, a drug test and just cause.  A similar issue is raised by a complaint filed by Colonial Wholesale Beverage Company seeking to vacate an award of Arbitrator Lawrence Holden. The dispute arose from the termination of an employee who tested positive for cocaine during a random drug test. 

Grievant acknowledged having used cocaine on a Saturday evening, August 10, but maintained that this was a one time event caused by his celebration of obtaining his "dream house." His first report to work following the Saturday night use was Tuesday, August 13, and he worked through August 20 when he was notified that a random drug test administered on August 16 had tested positive. 

Following receipt of the test results, the Company terminated the employee pursuant to what it described as its zero tolerance policy for drug use and for reporting for work under the influence of drugs or alcohol. It relied on a provision of the cba affirming that "the Union and the Employer agree that employees shall not engage in the unlawful use, purchase or sale of illicit drugs," language in its Employee Handbook that prohibits employees from reporting to work or working while under the influence of drugs or alcohol and that "an employee who engages in the above prohibited conduct is subject to disciplinary action up to and including immediate termination." 

The Union challenged the existence of  a zero tolerance policy, arguing that the Company maintained a second chance policy for employees who successfully completed a post termination drug treatment program, and that the Employee Handbook indicated the Company retained disciplinary discretion when an employee failed a drug or alcohol test. Such discretion, it argued, was inconsistent with a zero tolerance policy. 

The issue submitted to Arbitrator Holden was 

Did the Employer have just cause to terminate the employment of the grievant ... on or about August 26, 2019? If not, what shall be the remedy?

In his award, Arbitrator Holden noted that it was undisputed that grievant had tested positive for the presence of cocaine in his system. He then observed 

The dispute in this case is over what should be the appropriate outcome for the grievance in light of his positive test result.

He concluded that the evidence established that the Company "has retained discretion, bound by the contractual principle of just cause decision-making, as to the manner in which it will deal with violations of the substance abuse policy." He based this conclusion in part on the absence of any reference to a "zero tolerance policy enforced by summary discharge" and the absence of illicit drug use from the list of "cardinal sins" in the cba for which no written notice must be given prior to discharge. He also observed that 

If there were a zero tolerance policy in place, more than likely the Employee Handbook would have said so by stating that any employee who participated in substance abuse shall be terminated immediately.

Resolving another  contested issue, he found that a Notice issued by a previous Human Resources Director describing a "one chance to rehab" policy had been posted in the workplace despite testimony from Company witnesses that they were unfamiliar with this Notice and had never observed it. 

Arbitrator Holden found that grievant had violated the contractual prohibition on use of illicit drugs, but he found no evidence that he was under the influence at work. He ordered that grievant be reinstated without back pay. 

The Company's effort to have the award vacated asserts that the Arbitrator improperly ignored the stipulated issue by focusing on the question of remedy rather than "the limited question posed to him by the parties, which was whether the Plaintiff had just cause to terminate [grievant]." It asserts also that he ignored the contract's grant of authority to the Company to relieve employees for legitimate business reasons and the discretion to terminate an employee without warning "for violating the broad catch-all of 'any serious matter'." It alleges that the Arbitrator exceeded his authority under the cba, improperly and contrary to the cba "added to or modified" then agreement  and requests that the Court vacate the Award. 

Update: The District Court rejected Colonial's request to vacate the award and granted the Union's request to confirm. Colonial Wholesale Beverage v. Local 59, International Brotherhood of Teamsters

Zero tolerance, a drug test and just cause

 The Eleventh Circuit reversed the decision of a District Court and upheld an arbitration award (here) reinstating an employee terminated pursuant to the Company's Zero Tolerance policy following a positive drug test. Georgia-Pacific Consumer Operations LLC, v. United Steel  Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952.

The cba in issue provided:

 The Company will establish a "zero tolerance" random drug testing program for all Company employees at the Naheola facility.

The Company's Corporate Policy relating to random drug screening stated:

All persons who test positive for any substances listed in Section 1 (Introduction) will be terminated, unless otherwise prohibited by a collective bargaining agreement or applicable law. All terminations must be coordinated by the location/division human resources manager.

Grievant was selected for a random drug test. The test showed a positive result for codeine  When informed of the result, grievant explained that he may have mistakenly taken some of his wife's prescription cough syrup instead of his own, non prescription, one. Because grievant could not produce a prescription in his own name for cough medicine containing codeine his employment was terminated under the Company's Zero Tolerance Policy.

The termination was grieved and submitted to Arbitrator James Odom for resolution. In his award, Arbitrator Odom described the dispute:

 Does the Contract require the Company to demonstrate just cause in order to terminate an employee who has tested positive for opiates during a random drug screen?

The Company argued that under its Zero Tolerance Policy the positive test result itself established the required evidence of just cause. The Union maintained that any discipline administered under the contract was required to meet the just cause standard, which required an evaluation of all the circumstances. 

Arbitrator Odom concluded:

Obviously, maintaining a safe, drug-free work place is a necessary and positive goal of the Company. And I understand the theory that a well-advertised, strictly interpreted zero tolerance policy requiring every employee who tests positive on a random drug screen be immediately discharged could have a greater tendency to reduce the presence of drugs in a workplace than a practice that is less forceful. But is an inflexible “test positive and you are terminated" rule enforceable? More to the point, under the parties Contract, is such a policy enforceable with regard to the grievant and given his circumstances? 

Section 2 of Article 8, Rights of Management of the Contract limits Management's right to discipline and discharge employees to just cause. As a labor arbitrator, I am unable to interpret as reasonable or just any decision to terminate that purposefully ignores the circumstances and causes surrounding the violation

Applying that standard, Arbitrator Odom determined that there was not just cause for the termination.  He found grievant's use of his wife's cough medicine was not intentional, and there was no evidence that he was under the influence of drugs while at work. 

While finding termination too severe, Arbitrator Odom did find that grievant had made "the error of mistake" and was responsible for the negative results. He reduced the termination  to a ninety day suspension and ordered grievant's reinstatement.

 The Company sought to vacate the award as in excess of the Arbitrator's authority in ignoring what it believed to be the contractual requirement that a positive drug result in termination. The Company's complaint can be found here. The Magistrate, in a decision adopted by the District Court (here), agreed with the Company and vacated the Award. The Magistrate concluded that the Arbitrator's finding that grievant had engaged in conduct that was defined in the cba as an offense subjecting him to discharge constituted an "implicit finding" of just cause which the Arbitrator was not free to ignore. 

On the Union's appeal, the Eleventh Circuit overturned that decision. The Court found that the Arbitrator was within his authority in resolving the interplay between the just cause requirement of the cba and the language relating to the Company's random drug test program:

Turning to Georgia-Pacific's position, [the arbitrator] distilled it as "[Irvin's] positive test is the required evidence of just cause." Then, the arbitrator characterized the part of the contract concerning Georgia-Pacific's the random drug-testing program as a "commitment" and asked whether Georgia-Pacific's interpretation of the policy made to fulfil that commitment was "under the Parties' contract, . . . enforceable with regard to [Irvin] and . . . his circumstances?"
The arbitrator's answer was no. Whether that's right or wrong doesn't matter for our purposes—all that matters is that the arbitrator's answer flowed from his interpretation of the contract. The arbitrator emphasized that another provision of the contract limited Georgia-Pacific's power "to discipline and discharge employees to just cause." He then explained why he couldn't conclude that "just cause" existed under these circumstances. If his efforts had simply been free-wheeling policymaking, then vacatur would have been justified. But they weren't, and so it wasn't.

The Court rejected the Company's, and the District court's reliance on earlier cases finding an Arbitrator exceeded his authority by ignoring "express (and apparently complete) terms of a drug testing policy spelling out each provision in some detail." It found the language in this case "much less specific, as one might expect for an 'element' of a plan that the parties agree will be implemented later." Noting other detailed provisions of the cba relating to drug use and drug testing, it observed that the parties knew how to bargain clear, specific language that synthesized drug testing plans with the just cause provision, the Court found their failure to do so here left it within the Arbitrator's authority to resolve that relationship. 

Back pay - Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

 The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. City ordered to rehire 'proven racist' cop; status uncertain

The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator's award on the merits as well as a subsequent award on back pay issues. 

Arbitrator Gary Altman overturned the termination, finding the penalty too severe. He converted the discipline to a thirty day suspension and ordered grievant's reinstatement. He further ordered that:

... grievant shall not be awarded back pay for the period of this thirty day suspension. Under this award the grievant is to be made whole for lost compensation until he returns to work pursuant to this Award, minus thirty days’ pay for the period of the suspension. In addition, his back pay shall be offset by any compensation that the grievant received during this time period. 

The Department refused to reinstate the grievant, and also claimed that grievant had failed to mitigate his damages by failing to make reasonable efforts to find seek employment after his termination. It was undisputed that grievant had failed to seek alternative employment during the period he was no longer working for the City of Manchester. Grievant noted that following this termination he assumed primary caregiver responsibility for his two sons, providing the opportunity for his wife to increase her hours and, presumably her income. According to grievant:

“My wife adjusted her work hours and schedule following termination, no longer being able to serve as primary caregiver for them”, and that his wife now “works as a nurse practitioner and adjunct professor of nursing. Those employment responsibilities combined, having been adjusted post termination, have her now working 7 days a week.”

The  dispute between the Department and the Union concerning the appropriate calculation of back pay due grievant was submitted to the arbitrator for resolution. Manchester Police Patrolman's Association and City of Manchester.

Arbitrator Altman separated the back pay period into three district time periods. Initially he noted that at the time of grievant's termination the Department also sought to have the County Attorney pursue criminal charges against grievant.  The County Attorney ultimately did not pursue those charges. For this initial period, Arbitrator Altman concluded that the pendency of potential criminal charges seriously limited grievant's ability to find employment in a substantially equivalent position. He observed:  

Considering the totality of circumstances, including the position held by the grievant, and the fact that he was under criminal investigation, Mr. Brown was not required to have sought employment during the time period he was under criminal investigation. In other words, it was reasonable for Mr. Brown to have waited until the criminal investigation was concluded for him to make any attempt to look for substantially similar employment.2 

___
2 The obligation to seek employment is not for any and all positions. Rather, an employee’s obligation is to seek employment in a position suitable to his background and experience, and one that provides comparable pay and benefits.

The second time period encompassed the period between the time the County Attorney's office advised that it would not pursue criminal charges and the date of the Arbitrator's award. For this period, Arbitrator Altman concluded that grievant had failed to mitigate, and denied back pay:

Circumstances changed after it was clear that the County Attorney decided not to pursue criminal charges. Undoubtedly, it would have been difficult for Mr. Brown to find work in the field of law enforcement after his discharge, but the difficulty of finding such position does not excuse him from making at least some effort, to look for work. It is the general rule in back pay cases that an employee must make at least reasonable efforts to find new employment, which is substantially equivalent to the position lost and is suitable to a person of his or her background and experience.
It is not as if Mr. Brown had to actually find employment but he must, at least, have made an effort to search for employment. It would be inappropriate to allow an employee to collect back pay during a period when the employee made no effort to mitigate damages by seeking employment and essentially dropped out of the labor market.

Arbitrator Altman rejected the claim that grievant's assumption of increased child care responsibilities provided a basis for his failure to seek other employment. He noted:

The fact that Mr. Brown stayed home with his minor children while his wife worked additional hours does not satisfy the duty to mitigate. By this decision, Mr. Brown totally removed himself from the workforce. I know of no cases in which a discharged employee is excused from attempting to search for work because he decides to stay home with his children.

Finally, the Arbitrator found grievant was eligible for back pay for the period following the merits award ordering his reinstatement until the City actually returned him to employment:

The City has the right to challenge the Arbitrator’s Decision directing the reinstatement of Mr. Brown, as it deems appropriate. If the City complied with the Award, however, Mr. Brown would have been reinstated and would have begun to be paid the wages and benefits due to him under the parties’ Collective Bargaining Agreement. I know of no cases in which an employee’s obligation to mitigate continues after an award of reinstatement.  

Quick hits - Union dues, self defense, and clearing a grievant's name

Arbitrator rejects City's claim the Janus supersedes dues deduction withdrawal window of cba

Arbitrator William Heekin rejected the position of a School District that the Supreme Court's decision in Janus effectively superseded a ten day "window" for withdrawal of union dues deduction authorization. Fairfield City School District Board of Education and OAPSE/AFSCME Local 4 AFL-CIO Local 205.  Grievant had signed a membership application as well as a dues deduction authorization  on August 12, 2018. That application, and the parties cba, provided for revocation of a dues deduction agreement only during a specified ten day period annually. Grievant resigned his membership, and sought to revoke his dues deduction authorization outside the contractual window.  The School Board honored that request. The Union grieved the Board's action action, disagreeing with the Board's assertion that allowing that revocation was compelled by the Supreme Court's decision.

In upholding the Union's grievance, Arbitrator Heekin concluded:

Janus does not supersede or interfere with the Article 38, contractual mandate of when and how authorization for a union membership dues payroll deduction is to be revoked.

Arbitrator Heekin noted that grievant had previously signed both a membership application and a dues deduction authorization. This, he found,  distinguished the case from the circumstances involved in Janus:

Simply put, Janus deals with the Constitutionality of a public sector employee who, unlike Clifford Heckler, chose to not become a union member and had not authorized the payroll deduction of an agency fee, which in accordance with his collective bargaining agreement and/or state law would be remitted to the union that represented him in collective bargaining. In other words, Janus is determined to have not addressed the subject of a public sector employee such as Clifford Heckler who, unlike Mark  Janus, voluntarily chose to become a union member and voluntarily authorized his public sector employer to deduct union membership dues from his employee paycheck. This follows where the Supreme Court in setting out its nearly fifty-page majority opinion in Janus did not once refer to the subject of a union membership dues, payroll deduction or the relationship between an employee who voluntarily becomes a union member and his/her union. Accordingly, in finding that Janus does not apply, it is held that what controls is the Article 38, contractually mandated “ten (10) day” window period and other requirements as to when and how union membership dues payroll deduction authorization can be revoked. 

Accordingly, he ordered the School Board, as requested by the Union, to "[m]ake OAPSE whole $ for [grievant's] Authorization of Dues, and begin deductions again."

Bus driver's physical altercation with passenger driven in part by self defense, termination too severe 

Arbitrator Colman Lalka was presented with a dispute arising from an incident between a bus driver and passenger. The dispute began as a verbal exchange and escalated into a physical altercation. Arbitrator Lalka largely sustained the grievance, overturning grievant's termination but agreeing there was just cause for discipline "according to [the Company's] Progressive Discipline Program." Greater Cleveland Regional Transit Authority and Amalgamated Transit Union, Local 268.

In making his determination, Arbitrator Lalka looked to the standards used to resolve claims of excessive force by police officers. Applying those standards, the Arbitrator concluded

The bus operator's primary function is to drive the bus, while providing courteous service to the Authority's patrons. In situations of irate and difficult passengers, the Authority's de-escalation protocol can be expected to be used. However, an Operator must have some leeway to exercise judgment and reasonably respond to clearly out-of-control passengers who provide the driver with a reasonable belief of bodily harm.

While rejecting the RTA's assertion that grievant's conduct warranted termination, Arbitrator Lalka concluded:

While the Grievant's actions did not rise to the level of a terminable offense, the Grievant's act of yelling to the female passenger to "shut up," nevertheless constituted a violation of the Employee Performance Code. That act was also in contravention of the Grievant's de-escalation training in dealing with difficult passengers. Just Cause exists for discipline lesser than termination and may be administered pursuant to the Authority's Positive Discipline Program.

 Arbitrator sustains grievance of Sheriff's deputy, "encourages" joint public announcement clearing grievant's name

Arbitrator Doyle O'Connor sustained the grievance of a Kalamazoo Sheriff's Deputy whose employment had been terminated for alleged neglect related to the death in custody of a jail inmate. Kalamazoo Sheriff & County and Kalamazoo County Sheriff's Deputies Association

The incident in issue arose in June, 2015. An inmate who had smuggled drugs into the jail died from an overdose while in custody. Following that death, an investigation was conducted which cleared grievant, and other employees, of any wrongdoing or negligence. In 2019, in the course of discovery in connection with a lawsuit filed by the family of the deceased inmate, an audio recording, previously believed not to have not been retained, was uncovered.  After review of the audio, the Department decided to reopen the investigation into grievant's actions. 

Arbitrator O'Connor rejected the Union's challenge to the reopening. He found that the recently discovered audio constituted new and substantive information and supported the reopening of the investigation despite the long delay. However, he found nothing in the new audio to alter the original conclusion that grievant had engaged in no misconduct or negligence. Responding to the Union's claim that the decision to terminate was driven by political consideration arising from the lawsuit, the Arbitrator noted that the evidence did not "compel" that conclusion but that "to the extent that such pressure had any impact on the Employer's decision making in this case, it would be inappropriate." While he found that there was no evidence that grievant had neglected his duties, the Arbitrator noted that there was evidence that another Deputy had neglected his duties regarding the inmate, had attempted to conceal that fact, but was not disciplined. 

Finding that the Department had failed to establish just cause for the termination he directed  grievant be offered reinstatement "immediately" and be made whole in all respects. He further noted:

Given the high public profile this case has already had, and the damage unfortunately caused to [grievant's] otherwise good reputation where in these especially fraught times he has been charged with culpability in the death of an inmate in police custody, the Parties are encouraged to endeavor to agree upon a joint public pronouncement regarding the outcome; failing at that, the Parties regardless remain free to address the matter publicly as they see fit.

Arbitrator upholds termination of Sheriff's Deputy for off duty use of force

This case comes at a time one report notes " "[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."  Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force 

In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. 

The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.

Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force." 

On the propriety of termination, the Arbitrator noted:

The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment.

Two arbitrators address the issue of the COVID pandemic as a force majuere event

Two recent awards involve questions concerning the existence or impact of the Corona virus as a force majeure event, potentially excusing claimed violation of the parties' agreements.

In American Association of University Professors - University of Akron Chapter, Arbitrator Jack Buettner concluded that the force majuere clause privileged the University's actions when it implemented a "retrenchment." 

The effects of the COVID pandemic are certainly unforeseen and surely out of anyone’s control. The number of cases fluctuates from day to day, week to week, and location to location sending counties in Ohio from a Level 2, Orange, to a Level 3, Red, while hopefully avoiding the Level 4 designation which signifies severe exposure and spread and could result in another state of emergency. Cases of COVID on college campuses have been cited as one of the factors that have pushed counties into the Red zone. [Bamforth, E. (2020, September 4) Plain Dealer, p. A5.] The pandemic is affecting colleges in general as cited in Kiplinger’s Personal Finance. (5 Ways College is Changing. 9/2020, p. 44) There is lower enrollment as families struggle through the recession, tighter budgets as student revenue decreases, federal and state funding cuts, and declining government budgets. In an effort to balance college budgets, smaller staffs are being seen as faculty is laid off or furloughed. Circumstances remain in flux as the state grapples with the disease and its spread. COVID is, indeed, a catastrophic event, and it’s resulting impacts are unforeseeable and beyond the University’s control.

Having established that a force majeure did, indeed, exist, the University needed to satisfy the requirements in Section 1(A)  ...

Arbitrator Buettner concluded further that the pandemic did not relieve the University from complying with certain other obligations of the contract "which are feasible and possible to implement since there is no immediate financial impact  or time frame."

In Alaska Airlines, Inc. and Aircraft Maintenance Fraternal Association, Local 32 a panel chaired by Arbitrator Frederic Horowitz addressed a dispute that "arose as the product of economic disruption caused by the global COVID pandemic plaguing the travel industry." The parties disagreed about the scope of certain job security language in their agreement. 

Rejecting the position of the Company, the panel concluded that the applicable provisions "confirms the plain language of the parties' Agreement [and] supports the position of the Union."

    The parties are seeking expedited resolution from the System Board of good faith yet irreconcilable differences about the application of force majeure provisions in Paragraph 2. of LOA #9 to the job security provisions in Paragraph 4. of that LOA as well as to the impact if any of those protections on the seniority provisions in Article 9 K.2. of the Agreement. When negotiating the Transition Agreement in 2019, neither party anticipated the massive economic disruptions caused by the global pandemic in 2020. The System Board in these circumstances cannot attempt to presume or conjure what the bargaining parties would have done had the subject been raised in negotiations. Rather, the Board can only interpret and apply the existing contract provisions in a manner consistent with accepted standards of contract construction in light of the unique facts presented.

    In Issue No. 1., the evidence supports a finding the job security provisions in Paragraph 4. of LOA #9 are not subject to the force majeure provisions in Paragraph 2. based on the plain language of those provisions and the absence of a mutual intent manifested otherwise during bargaining.

Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement

 An earlier post, Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement,  noted a complaint filed by Dana Corp seeking to set aside an award of Arbitrator Daniel Kininmonth.  That award involved the termination of an individual who was subject to a last chance agreement (LCA). 

The LCA provided:

In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination. 

Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.

The Arbitrator found that grievant had engaged in the conduct he was accused of, and that this conduct was in violation of the LCA. However, observing that "An employee who signs a last chance agreement only gives up the rights him or her expressly agrees to give up" the Arbitrator found that the LCA in this case did not expressly exclude the principle of "just cause."

 Arbitrator Kininmonth found that grievant had been subjected to double jeopardy — he had  been issued a "written warning" for an offense he was subsequently terminated for.

The Arbitrator rejected the Company's claim that he was without authority to consider the question of Double Jeopardy in the presence of a Last Chance Agreement:

The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.

The District Court for the Eastern District of Kentucky has now confirmed the award, rejecting the Company's claim that the Arbitrator  acted outside the scope of his authority and did not carry out his role of interpreting the LCA  but instead utilized his own notions of "just cause." Dana Incorporated v. International Union, United Automobile, Aerospace and Agricultural Implement Workers 

The Court concludes:

Dana argues that arbitrators may not examine just cause under last-chance agreements, pursuant to the Sixth Circuit rulings in Ohio Edison Co. v. Ohio Edison Joint Council, 947 F.2d 786, 787 (6th Cir. 1991) and Bakers Union Factory No. 326 v. ITT Cont'l Baking Co., 749 F.2d 350, 351 (6th Cir. 1984). ... But the Arbitrator distinguished those cases as involving instances where the arbitrator failed to follow the terms of the last chance agreement at issue by mitigating the employee's termination (when the agreement clearly called for termination). Instead, the Arbitrator advised that, he "had not ignored the LCA," ... and that the LCA "does not exclude the principle of `just cause.'"... Although the LCA here called for termination, the Arbitrator, after finding "just cause" and related procedural protections remained, found a procedural double jeopardy violation (which he deemed an affirmative defense, not a mitigating factor) when the Company punished Akerman twice for the same conduct. ... This Court need not decide whether that distinction is too fleeting to matter. Perhaps the jump from "defense" to "affirmative defense" was a mistake. Indeed, this Court may have reached a different conclusion, but this Court's "task is not to choose the best interpretation." ...

Finally, Dana argues that the Arbitrator went outside of his authority in considering affirmative defenses because the LCA did not allow for an affirmative defense.... True, but the LCA did not expressly disallow affirmative defenses either. The Company drafted the LCA and could have easily defined the term "legitimacy" to avoid this dispute and foreclose any procedural due process arguments. See Zeon Chemicals, 949 F.3d at 985 ("Had the company clarified two features of this agreement, we do not see how the arbitrator could have plausibly contradicted them.") Given the inartful language, the Court will "leave the parties to what they bargained for." Zeon Chemicals, 949 F.3d at 982. Here, they tasked the Arbitrator with determining the legitimacy of Akerman's discharge. This is precisely what he did. He applied the terms of the LCA (including its "legitimacy" provision) to the facts of Ackerman's discharge. Whether he reached the right outcome is neither here nor there. The parties "bargained for an arbitrator's interpretation of the contract, not a federal judge's." Econ. Linen, 917 F.3d at 513. With all of Dana's arguments met, the Court finds that the Arbitrator did not act outside the scope of his authority and that he was, at a minimum, "arguably construing or applying the contract." Zeon Chemicals, 949 F.3d at 983 (quoting Misco, Inc.,484 U.S. at 38). Given the deferential standard, the Court will not disturb his decision.

Arbitrator Kininmonth's award contains a detailed review of cases discussing the impact of a LCA on an Arbitrator's authority. 

Arbitrator finds Federal Bureau of Prisons failed to establish a BFOQ defense for refusing to assign female staff in an all male prison to ""Dry Cell" and suicide watch duty.

 In his award in  U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Memphis Tennessee  and American Federation of Government Employees, Local 3731, Arbitrator Daniel Kininmonth addresses the balance between the rights of male inmates to bodily privacy and the rights of female staff to be assigned to guard them.

FCI Memphis is an all male, medium security facility. The grievance in issue involved the Bureau of Prisons' decision to exclude female correctional officers (or supplemental staff) from Dry Cell or Suicide Watch. Where an inmate has ingested contraband or concealed contraband in a body cavity, he may be placed in a cell with no toilet, faucet or shower (a dry cell). The inmate is then closely observed "until the inmate has voided the contraband or until sufficient time has elapsed to preclude the possibility that the inmate is concealing contraband ..." In Suicide Watch, the correctional officer continuously watches the inmate to prevent him from harming himself. The grievance arose when female correctional officers were denied the opportunity to handle these assignments. 

The parties raised a variety of issues in support of their respective positions, but one of the issues was the BOP's assertion that its policy of excluding women from these assignments justified by "business necessity" and that the applicable agreement recognized its right to assign work. The union claimed that the exclusion was discriminatory on its face and could only be justified if gender was a Bona Fide Occupational Qualification (BFOQ) for the assignment.  While recognizing that inmates had a legitimate privacy interest, the Union argued: 

Privacy protection directly affects the essence or central mission of prisons.  ...  The Sixth Circuit has uniformly held that "privacy" relates to the essence of prison business. Million v. Warren Cty., Ohio, 2020 U.S. Dist. LEXIS 28000 (S.D. Ohio 2020). Yet, an inmate's right to privacy must be balanced against the legitimate objective of providing equal job opportunities without regard to sex pursuant to Title VII. Griffin v. Michigan Dep't of Corrections, 654 F. Supp. 690, 701 (E.D. Mich. 1982). The courts balance both privacy rights and Title VII. The degree of the balancing depends on the inmate's gender. Occasional and inadvertent observation of unclothed inmates by cross-gender guards is usually tolerated by the courts. This is particularly true of female guard's observing male inmates

After  an extensive review of the case law and legal commentary on this question, Arbitrator Kininmonth concludes that the BOP failed to establish that its position was consistent with a BFOQ defense:

In this case, (1) FCI Memphis has not asserted a factual basis that assigning female staff to "Dry Cell" or "Suicide Watch" would undermine the prison's operation. (2) Admittedly, an inmate's privacy at FCI Memphis is entitled to some protection under the law. However, the inmates in "Dry Cell" and "Suicide Watch" are clothed. Therefore, there is no privacy violation. (3) There are reasonable alternatives to protect the inmate's privacy. If the inmate has the urge to urinate or have a bowel movement in the "Dry Cell," the female staff member can summon a male colleague and temporarily withdraw. The inmate in "Suicide Watch" who needs to urinate or defecate can be provided a towel, blanket or privacy screen in his cell to protect his privacy. FCI Memphis cannot prove the three (3) factors necessary to sustain a "Privacy BFOQ Defense." 

The Arbitrator also considered and rejected the BOP's claims that the grievance was insufficiently specific and untimely.

Update: The Federal Labor Relations Authority denied the Agency's exceptions and upheld Arbitrator Kininmonth's award. 73 FLRA No. 5 (May 26, 2022). The opinion can be found here.

 

Another case rejecting termination of an officer because of prosecutor's unsupported decision not to use them as a witness

A recent post (State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer) addressed the issue of a City's termination of a police officer after the prosecuting attorney's office announced it would not use the officer as a witness in any proceeding.

In a case raising a similar issue, the Commonwealth Court of Pennsylvania has affirmed a decision refusing to vacate an arbitrator's award that reinstated a police officer dismissed because the District Attorney's office would not prosecute cases based on the uncorroborated testimony of the officer. Borough of Gettysburg v. International Brotherhood of Teamsters Local 776, Police Labor Organization.  

The City's action took place after it received a letter from the District Attorney's Office confirming its position but requesting that the City not "disseminate this letter or the information contained therein to any other non-law enforcement entity."  At a Loudermill hearing, the officer was advised of the contents of the letter but a copy of the letter was not produced. The officer's employment was subsequently terminated. The matter was grieved and the Arbitrator found no just cause for the termination.

Seeking to vacate the award, the City claimed that it improperly ordered it to reinstate an officer who could not perform the essential duties of his position. Rejecting this position the Commonwealth Court noted:

Here, unlike in SCI-Forest, the Arbitrator did not find Grievant committed misconduct and place restrictions on Grievant as a result thereof. Rather, the Arbitrator opined: “I am unable to address the substantive merits of the Borough’s termination decision in this case, since I find that the Borough failed to provide [] Grievant adequate procedural due process prior to terminating his employment.” ...  In sum, the Arbitrator determined that, since Grievant was not given any basis for his discharge, and therefore no ability to defend himself at the required Loudermill hearing, the Borough “did not have just cause to fire him.”

The Court also rejected the City's claim that it was denied due process because the Arbitrator concluded that it had an obligation under Loudermill to inform the grievant why the DA's Office no longer intended to prosecute cases involving the Grievant. The Court concluded:

Here, the Borough is essentially asking this Court to find that the Borough’s denial of Grievant’s due process rights in not providing the reasons for his dismissal is justified because the Borough could not obtain said information, and for the Arbitrator to base his award on the Borough’s failure to provide said information denied the Borough its due process rights. This Court cannot draw such a conclusion. The Borough chose to discharge Grievant due to a letter for which the underlying basis was unknown. Thus, the Borough put it itself in a situation wherein it could not provide the required information, not the Arbitrator. Accordingly, the Borough’s due process rights were not violated.

State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer

Grievant began his employment with the Marco Island, FL Police Department in October 2006. He was hired 18 months after having been terminated by the Collier County Sheriff's Office after it was claimed he had given misleading testimony during an investigation.

In November 2010 grievant was dispatched to a DUI. He testified in connection with that case at an administrative hearing. In February 2011 the presiding judge at that proceeding received a report of an allegation by another bargaining unit employee that grievant had lied during the hearing. The allegation was reported to the City and a meeting was held between the Police Chief and a representative of the State Attorney Office (SAO). No action was taken by the City, but the SAO independently reviewed the matter. In November 2013 the SAO sent a letter to the Police Chief advising that because of the allegation of untruthfulness during the 2010 hearing, and grievant's earlier dismissal from the Colier County Sheriff's Office, grievant would no longer be used as a witness in the prosecution of criminal cases. Six months later, an Internal Affair's investigation was opened relating to the alleged untruthful testimony in 2010, but the investigation remained uncompleted when the assigned investigator left the Department. 

In February 2015 the SAO sent a second letter to the Department, restating its position that it would not use grievant in the prosecution of criminal cases. A new investigator was assigned to the still open Internal Affairs investigation, and in April 2016 a report was issued sustaining the allegation of untruthfulness in the 2010 testimony. However, because of the length of time that had elapsed, grievant could not be disciplined.  Grievant continued his employment but the SAO declined to prosecute on almost 80% of the cases grievant handled.

In January 2019 a new City Manager was appointed, and, after an article (State attorney's office declined to prosecute multiple Marco Island criminal charges last month due to 'Brady cop') appeared in a local newspaper in February 2019,  the City advised grievant that he would be removed from his position as a police officer. The City  noted the termination was premised solely on grievant's inability to testify, and not on either the allegations raised in connection with his employment by the Collier County Sheriff's Office or the results on the Department's Internal Affairs investigation. It held out the possibility of transfer to a civilian position if one existed, an offer grievant declined.

A grievance was filed, and ultimately submitted to Arbitrator Gerard Fowler for resolution.

Arbitrator Fowler rejected the City's reliance on the management rights provisions of the cba, and its claim that the proposed removal was not a disciplinary action.  He observed:

Whether a party chooses to refer to a grievant's removal as a termination rather than a discharge is a distinction without a difference. Any union member covered by a collective bargaining agreement with a just cause provision must be provided with just cause if the termination is to stand. Accordingly, the Arbitrator finds that based upon all of the evidence and testimony before him Grievant was discharged as that term is set forth in arbitral precedents. Therefore, this arbitration centers on whether the Employer properly discharged Grievant.

 Turning to the merits, Arbitrator Fowler concluded that the City's reliance of the refusal of the SAO to use grievant as a witness, in the absence of any evidence that he had in fact engaged in any dishonest behavior, was insufficient to support the termination. He found:

The record clearly shows the City never attempted to prove or present any proof regarding Grievant's dishonesty. Grievant did present testimony indicating that he did not misrepresent any fact while testifying in 2010 or any other time. Clearly the only basis to terminate Grievant from his position is based upon the letter from the State Attorney. This letter is unsupported by evidence or details of any investigation on the part of the SAO. There is no judicial determination on the record indicating that Grievant has ever been dishonest in his testimony 

Accordingly, the testimony and evidence in this case failed to establish just cause to discharge grievant. The grievance must be sustained. Grievant is entitled to be reinstated to his position of police officer and made whole for all of the losses he suffered as a result of his discharge by the City, and it shall be so ordered.

Arbitrator Fowler's award in City of Marco Island, Florida and Gulf Coast Florida Police Benevolent Association, Inc. can be found here.

Similar issues are addressed in Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination and Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness

Court rejects Nurses Association request for reverse Boys Market injunction requiring hospital to provide ppe and other Covid related safety measures

The District Court for the Southern District of New York rejected the request of the New York State Nurses Association for a reverse Boys Market injunction seeking to compel Montefiore Medical Center to take certain steps to mitigate the risk that nurses might contract Covid-19 while the Union's grievance was pending. The New York State Nurses Association v. Montefiore Medical Center.

The Union sought, inter alia, to have the Medical Center provide PPE, space to don and doff such equipment, and "adequate" coronavirus testing. A copy of the Union's complaint for injuntive relief is available here.

Noting how narrow the reverse Boys Market exception is to the Norris LaGuardia limitation on injunctions in labor disputes, the Court found it was without jurisdiction to grant the requested injunction. It agreed with the position of the Medical Center that the requested injunction "does not seek to preserve the status quo. Instead, it 'seeks to create a new status quo that gives the Union everything (and more) it requests in the grievance.' "

While denying the request, the Court encouraged the parties to attempt to resolve the dispute quickly:

The Court does so with a plea to both sides to continue their efforts in good faith to reach an amicable resolution of their disputes. Both sides presumably share the ultimate goal of maximizing protections for healthcare workers on the front lines of the battle against a vicious disease without compromising patient care. And the parties are plainly in a better position than either the Court or an arbitrator to find the best ways to achieve that goal despite limited resources and ever changing circumstances. Failing an amicable resolution, the Court hopes that the parties can and will expedite the arbitration proceedings. This Court may lack authority to address NYSNA's concerns, but to the extent these concerns are valid, it is critical that they be addressed as swiftly as possible. Lives may hang in the balance, and the NYSNA nurses deserve as much. 

CA2: Reinstatement without back pay for "first time" sexual harasser not contrary to public policy

In a Summary Order, the Second Circuit has affirmed the decision of the District Court (here) refusing to vacate an Award of Arbitrator Carmelo Gianino. Arbitrator Gianino had ordered the reinstatement, without backpay, of grievant, a security guard, who had been dismissed "for creating a hostile work environment when he made sexualized comments about a female staff member's wardrobe and appearance." Barnard College v. Transport Workers Union of America, AFL-CIO Local 264.

Grievant, who was also the Local Union President, was representing another employee in a disciplinary hearing when he claimed he was unable to question the witness because her attire made him uncomfortable. When pressed for the reason for his discomfort he replied that her blouse was cut too low. 

The Arbitrator found that Grievant's conduct warranted discipline, but that termination was too severe. He ordered grievant's reinstatement without backpay and with loss of seniority credit for the time he was off. 

The College sought to vacate the Award, asserting that it was contrary to public policy, to law, and  beyond the authority of the Arbitrator. The District Court rejected all of these claims, and confirmed the award. 

The Second Circuit affirmed. It found no violation of public policy, noting:

It is certainly the case, as we have long noted, that "[t]he public policy against sexual harassment in the work place is well-recognized." Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, AFL-CIO, 915 F.2d 840, 844 (2d Cir. 1990). But we have only found that this public policy counsels against deference to an arbitral award when an arbitrator reinstates a terminated individual who had engaged in multiple acts of sexual harassment—including acts that had already served as the basis of prior arbitral rulings against that individual. Id. at 845. In such instances, reinstatement would indeed violate public policy, and vacatur of the arbitral award would be justified.
In the present case, however, [grievant] was being punished for only a single act, and public policy does not counsel as strongly against deference to the arbitral award

The Court also observed that, as a result of the Award, grievant lost his claim for approximately $80,000.00 in back pay, and that such a punishment was "consistent" with a public policy of eradicating sexual harassment from the workplace. 

Finding no merit in any of the College's arguments, the Court affirmed the judgment of the District Court. 

Does an award of "make whole" relief, without more, imply an offset of interim earnings?

That was the question presented to the District Court in United Electrical, Radio & Machine Workers of America and Local 506 v. General Electric Company.

GE dismissed an employee for unacceptable attendance. That action was grieved and ultimately submitted to arbitration. The parties stipulated the issue as "Was the discharge of [grievant] for just cause? If not, what should be the remedy?"

Arbitrator Christopher Miles issued an award finding the termination to have been made without just cause. He sustained the grievance, and ordered that grievant be reinstated and "made whole for lost wages and benefits."

The Company reinstated grievant, and asked the Union for information on any earnings of grievant during his time off. The Union declined to produce the information, stating that they believed the award was final and binding and noting that the Company had not raised the issue of the appropriate remedy or mitigation of back pay during the hearing. 

The Company requested the Arbitrator to participate in a conference call, but the Union opposed the request. Arbitrator Miles was unwilling to participate in such a call without the agreement of both parties, stating that since he had not retained jurisdiction both parties would have to agree to his continuing involvement.

The union filed a complaint seeking to confirm the award, requesting an order compelling the Company to comply with the Award, including the "make whole" remedy.

The District Court for the Eastern District of Pennsylvania granted the union's request. The Court concluded that the decision was not ambiguous. It agreed with the Union's position that the "clear meaning" of the Award "does not provide for any offset or mitigation." The Court observed that the Award itself contained no language that the make whole remedy was subject to offset or mitigation, and that, while the absence of such language was not dispositive, "the silence of the Arbitration Award on this matter speaks volumes."

The Court also relied on the Arbitrator's failure to retain jurisdiction as suggesting that the Award was not intended to create issues that would need to be resolved after the fact, as well as the absence of any language in the cba providing for offset. The Court noted further:

Moreover, GE did not raise the issue of offset with Arbitrator Miles at all, despite the fact that the appropriate remedy was one of the issues the arbitrator was deciding. Regardless of whether GE’s decision not to raise the issue at the hearing or in its post-hearing brief constituted a “waiver” of its right to do so, it does suggest that offset and mitigation were not issues GE deemed to be relevant.

While recognizing that there was no "binding" Third Circuit precedent on the question of whether the absence of language on offsets or mitigation unambiguously establishes that none were intended, it found "persuasive" authority from several other circuits demonstrating that "as a general matter, the absence of language regarding offsets or mitigation unsurprisingly means that none were intended."

The Court also rejected the Company's argument that "there is a universal principle, at least in labor and employment law, that a make whole remedy is not intended to make the aggrieved party more than whole, and therefore that interim outside income must be deducted from the award." It noted that the cases relied on by the Company involved employment discrimination statutes, where the courts were dealing with language specific to those statutes, finding:

The cases do not establish that offsets and mitigation are legally required in all labor and employment cases and in no way provide a basis for how to interpret the meaning of a make whole remedy that is silent as to the matter.

The Court concluded:

Requiring that backpay be offset, as GE asserts, is not uncommon, but that is not what happened here.
Accordingly, the Court will enforce the plain language of the Arbitration Award that provides simply that [grievant] be made whole for lost wages and benefits.

A similar issue is discussed in Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator

Two recent cases on challenges to an arbitrator's supplemental award - AAA Rule 40, functus officio, and punitive damages

In Verizon Pennsylvania LLC v. Communications Workers of America, Local 1300, the District Court for the Eastern District of Pennsylvania vacated the "Supplemental Award on the Remedy" of Arbitrator Barbara Zausner.

Arbitrator Zausner, chairing a three person panel, had granted a grievance challenging the Company's implementation of a program to have certain set top boxes related to its FIOS TV service delivered to customers by common carrier. Previously the boxes were either carried to the customer location by bargaining unit technicians or picked up by the customer for self installation. In sustaining (here) the original grievance, the panel (with the Company representative dissenting) concluded:

We conclude that mailing set top boxes is different from the customer picking up the set top box from a company location because the customer is not a contractor. But employees of other employers who do the delivery work as part of their jobs, are getting the advantage of work that is protected by Section 17.01. Therefore, the Company must cease and desist from mailing the product to customers when the Company is to provide the installation or maintenance on a set top box.

The panel referred the question of what the monetary remedy should be to the parties for resolution, retaining jurisdiction should the parties be unable to agree. The parties were in fact unable to agree, and the matter was returned to the panel.

In a Supplemental Award (here) a majority of the panel determined, inter alia:

A monetary remedy in this matter is directed to compensate these employees and to deter future violations of Article 17.01. The remedy requested consists of: the number of set top box shipments and deliveries to Pennsylvania customers (other than by customers themselves, and including deliveries made by Assistant Technicians), from the date of the grievance until the Company returns the disputed work to the bargaining unit Services Technicians, at the straight time rate of two hours per delivery at the top step wage rate. ...

Verizon filed suit to vacate both the merits award and the Supplemental Award on the Remedy, and the Union filed to confirm both.

The Court confirmed the merits award, but vacated the Supplemental Award. While the court rejected several of the Company's challenges to the Supplemental Award, it found other elements conflicted with, or went beyond, the merits Award.

The Court agreed with the Company that those elements of the remedial order were barred by the doctrine of "functus officio," a doctrine the Court described as "a shorthand term for a common-law doctrine barring an arbitrator from revisiting the merits of an award once it has issued." It concluded that

A conflict exists between the decisions: the Merits Award explicitly held that customer installation did not violate the CBA while the Remedy Award barred such installation unless the customer personally transported the set top box to her home. By its terms, the Merits Award permitted delivery by a Union technician with installation by the customer, while the Remedy Award foreclosed that option. Accordingly, the injunction barring any customer self-installation can only stand if one of the exceptions to functus officio applies. [footnote omitted]

Concluding that no such exception existed, the Court determined that "the Remedy Award's order regarding customer self-installation was improper and must be vacated." The Court similarly agreed with the Company "that the functus officio doctrine barred the Panel from including installation time from all 1,373,486 installations in the remedy because, in the Merits Award, the Panel held that customer self-installation did not violate the CBA."

Unrelated to the functus officio issue, the Court also concluded that the monetary award in the Supplemental Award constituted an improper award of punitive damages, something not provided for in the CBA. It noted that none of the grievants lost income since they had all been fully employed, and that the Award explicitly provided that the award's purpose was "to deter future violations ...."

The Court remanded the dispute to the arbitration panel "for calculation of a remedy consistent with this opinion."

A second case, Communications Workers of America v. Southwestern Bell Telephone Company, also involves the impact of an arbitrator's supplemental award. In that case, Arbitrator Samuel J. Nicholas initially upheld a grievance that claimed the Company violated its CBA when it assigned certain work to employees in a lower paid title in the same bargaining unit. Arbitrator Nicholas concluded that

no language in the Agreement restricts or forbids Management from making said changes. Thus, on its face, the Union's assertion that Management's actions violated the provisional language of the Settlement Agreement falls short.

However, he found that Union Exhibit 4 supported the Union's position that the assignment of duties could not be made without negotiations. In light of that Exhibit he concluded:

Your Arbitrator is quite aware that he is forced to balance the given practice with Management's right to operate in a manner that supports the mission of the Company. Absent clear practice that the parties have chosen to abide by and despite the nature of the proposed changes and the additional requirement associated with the proposed changes, I would be inclined to find that no violation of the Agreement occurred. However, in light of the aforementioned practice, and the manner in which it has been observed in the past, your Arbitrator holds that Company's decision to unilaterally apply new job duties without consulting the bargaining unit marked a violation of the long-standing practice that the parties share.

Shortly after the award issued, the Company filed a Request for Reconsideration, pointing out that Union Exhibit 4, which had been admitted over the Company's objection, was the product of, and related to, a different bargaining unit. The Union opposed the request, arguing that while Rule 40 of the American Arbitration Association Voluntary Labor Arbitration Rules (incorporated into the parties' cba) allowed an arbitrator to correct "clerical, typographical, technical, or computational errors" it prohibited an arbitrator from redetermining the merits of a claim already decided.

Arbitrator Nicholas found that he had committed a "technical error" in his reliance on Union Exhibit 4 and was "obliged to correct the noted mistake." He found no violation of Rule 40 in this action. On the merits he found that, as he had referenced in his earlier award, in the absence of applicability of Union Exhibit 4 he would find no violation of the cba. Accordingly he rescinded his earlier award "in favor of a ruling that no contractual violation occurred" and denied the grievance.

The Union filed suit, challenging the second award as contrary to the finality language of the cba and the provisions of AAA Rule 40, and seeking to confirm the original award. The District Court rejected the Union's challenge in an opinion addressed in Res judicata, CWA and Southwestern Bell, and a question of timeliness of a Loudermill hearing.

The Fifth Circuit has affirmed the District Court's decision. Communications Workers of America, AFL-CIO v. Southwestern Bell Telephone Company

The Court concluded that the Arbitrator's interpretation of AAA Rule 40 was "arguable" and within his authority. In light of the deference accorded to arbitration awards, it was entitled to be confirmed.

Addressing the functus officio issue, it noted further:

CWA argues that the arbitrator's actions ignored the "finality" provision in the parties' CBA and the common law doctrine of functus officio. This argument misapprehends the purpose of Rule 40. While it is true that the doctrine of functus officio "bars [the] arbitrator from revisiting the merits of an award once the award has been issued," Brown v. Witco Corp., 340 F.3d 209, 218 (5th Cir. 2003 (citation omitted)), Rule 40 "essentially codifies the common law doctrine of functus officio," Int'l Bhd. of Elec. Workers, Local Union 824 v. Verizon Fla., LLC, 803 F.3d 1241, 1248 (11th Cir. 2015) (citation omitted). Though the CBA provided that the decision of an arbitrator "shall be final," the CBA also authorized the arbitrator to reconsider his decision as long as it complied with Rule 40. Given the interlocking nature of these provisions, CWA's argument that the arbitrator violated the doctrine is a restatement of its argument that the arbitrator violated Rule 40—not an additional basis for relief. Because the arbitrator did not ignore Rule 40 in issuing his decision, he also did not ignore the CBA's finality provision or the functus officio doctrine.

The functus officio doctrine is also addressed in these posts:


"Functus Officio" precludes arbitrator from reconsidering award

Timeliness, functus officio, mitigating circumstances, and use of force

Arbitrator concludes "functus officio" precludes reconsideration of award

Arbitrator's failure to follow prior award not a basis for setting aside award

District Court finds Arbitrator exceeded authority by awarding attorney's fees to Union as a remedy for Employer's "frivolous" position

An earlier post noted competing efforts to vacate or confirm an arbitrator's back pay award for an individual whose employment had been terminated by Indiana and Michigan Electric Company. Recent Petitions to Vacate - Persona non grata, a dispute over back pay, and transfer of work to a non-unit employee. The Union (IBEW Local 1392) had sought an award of approximately $240,000.00. The Company calculated its liability at "negative $29,166.51.00."

The Award of Arbitrator Cynthia Stanley substantially adopted the Union's calculation, awarding a little more than $260,000.00 (which included interest on the backpay). (here) She also ordered the Company to pay the Union's attorney's fees of $2,560.00 for the Supplemental Briefing period on back pay, finding the Company's position on the back pay issue "frivolous and in bad faith." (here)

The District Court for the Northern District of Indiana has recently rejected most of the Company's challenges to the back pay award. Indiana Michigan Power Company v. International Brotherhood of Electrical Workers, Local 1392 The Court rejected the Company challenge to the Arbitrator's decision on calculation of back pay, the use of the maximum overtime and double time worked by an individual employed during the back pay period as an appropriate measure of damages, and the Arbitrator's declining to adopt the Company's position on grievant's alleged failure to mitigate his damages. It did, however, vacate the award of attorney's fees. In doing so, the Court noted that since the cba applicable to this dispute specifically provided that "each party 'shall' bear their own expenses, the Arbitrator must have based her award on some body of thought, or feeling, or policy, or law that is outside the contract." The Court recognized that the Seventh Circuit has held that an arbitrator has discretion to award attorney's fees where the contract is silent on the issue. Prairie Installations, Inc. v. Chi. Reg'l Council of Carpenters. Here, however, the cba was not silent on the issue but contained restrictive language. It also observed that the issue in this case "occup[ies] a unique category" in that the award of fees was not imposed as a remedy for a violation of the cba but "as a remedy for the Company's conduct of the presentation of arguments concerning the correct amount of back pay damages."

On the fees issue the Court concluded:

Ordering fees due to bad faith or frivolous argument would require an addition to, or modification of, the fee language. But the CBA specifically stated that the arbitrator "shall have no authority to . . . add to, detract from, or in any way modify the terms of the Agreements." Accordingly, the Court agrees that the award of attorney fees should be vacated.

The Court also found that the Arbitrator's award of payment to grievant for 8 hours of unused Personal Day Off time was duplicative of the award for back pay for the entire period grievant was off work.

The Union's request to confirm the awards remains pending, and the Court has requested the parties to identify any further issues and discuss the procedural posture of the case in light of the Court's rulings.

Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination

After a thorough review of the facts, Arbitrator Joseph Daly concludes that Eden Prairie police officer Travis Serafin did not lie about his handling of an application for a search warrant, and did not intend to mislead the court when he testified. Law Enforcement Services, Inc., Brooklyn Center, Minnesota [Travis Serafin] And City of Eden Prairie, Minnesota. Those allegations were the basis for the County Attorney's office designation of  the officer as a Brady officer and his decision that he would not use the officer as a witness in any case. As a result of the County Attorney's decision, the Department terminated the employment of Officer Serafin for his "inability to perform an essential function of his job as a police officer" i.e to provide courtroom testimony.

While the factual background is somewhat complicated, essentially the dispute arose when grievant sought to replace what he described as the lost first page of an application for a search warrant. In doing so, he printed out a new first page. That new page was somewhat different from the first page that had been on the original application. Grievant testified that the new page, consistent with all of his other search warrant applications, contained language seeking authorization to search any vehicles on the property. That language, according to grievant, had inadvertently been excluded from the first version of the affidavit, something grievant asserted he was not aware of at the time.

The confusion about that discrepancy led to grievant being disciplined by a reprimand, and removal from a Task Force and SWAT and required to attend additional ethics courses and work with  a supervisor in the creation and execution of search warrants. In response to a grievance filed over the discipline, the Department noted that "if we thought you had done this on purpose we would have fired you." That discipline was upheld by the City Manager as "final" and grievant worked for two and a half months as a patrol officer without incident.

Thereafter, the County Attorney notified the Department that it believed grievant had intentionally modified the application after it had been signed and had testified falsely about the circumstances. The Count Attorney notified the Department that "it cannot permit Mr. Serafin to ever be called as a witness in any case prosecuted by the office."

The Union claimed that the Department's actions violated the principle of double jeopardy, and were contrary to a MOU providing that a Brady designation "is not, in and of itself, related to the employee’s employment and will not be used by Eden Prairie PD for disciplinary purposes.” It also asserted that any conclusion that grievant intentionally misrepresented the circumstances surrounding  the creation of the new page was factually unsupported. It relied on prior arbitration awards, including Benton County and Law Enforcement Labor Services, Inc. (discussed in Arbitrator rejects claim that Deputy's "isolated lying incident" makes him Giglio impaired or provides just cause for termination) and sought to distinguish the decision in City of Cloquet and Teamsters Local 346 (discussed in Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness). The City maintained that the arbitrator did not have the authority to modify the County Attorney's decision concerning who to call as a witness and therefore "the only question for the arbitrator in this proceeding is whether Mr. Serafin’s inability to perform an essential function of his job as a police officer—provide courtroom testimony—constitutes 'just cause' for his termination."

Substantially sustaining the grievance, Arbitrator Daly concluded that grievant "is a credible witness who made a mistake." He noted:

This arbitrator has no authority to tell the Hennepin County Attorney’s Office, the Ramsey County Attorney’s Office, or the City of Eden Prairie City Attorney’s Office what witnesses they may call. But he does have the authority to opine that Mr. Serafin has faced a grave injustice in being classified as a Brady/Giglio officer. He should not be classified as an incredible officer. Just the opposite. His entire professional experience as a police officer, his hard work, his training, the very high opinion that his fellow officers hold of him, and his testimony show he is highly credible and capable. If this arbitrator had the authority to order the Hennepin County Attorney’s Office, the Ramsey County Attorney’s Office, and the City of Eden Prairie Attorney’s Office to remove its label of Brady/Giglio as applied to Officer Serafin and change each decision to no longer call Officer Serafin to testify, I would do so. But I do not have that authority. On the other hand, I would hope that Officer Serafin would have an opportunity to continue his work as a skilled and respected police officer in the City of Eden Prairie or in some other city he chooses to work. At least if he is called in a serious case for which he has critical evidence, such as murder in the first degree case, and the defense attorneys are given the information about his unfortunate mistake in the Holmes search warrant, he can use some of the language in this arbitration hearing to let the judge and jury know that at least an arbitrator who heard the facts in-full has concluded that Officer Serafin is a highly credible police officer who was terminated without just cause. 

He ordered the grievant's reinstatement to his former position with a loss of back pay for the time off because of his "unintentional mistake."