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."