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William Heekin rejected the position of a School District that the Supreme Court's decision in Janus effectively superseded a ten day "window" for withdrawal of union dues deduction authorization.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.