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.