Union wins reinstatement but challenges Last Chance provision of Award

Grievant was employed as a police officer by the Borough of Fountain Hill, PA. On June 4, 2012 he was involved in an incident with an individual he and another officer had transported to the police station. The individual in custody was intoxicated and exhibited violent mood swings. The second officer was placing the handcuffed individual in a holding cell. While there was disparity in the testimony concerning what took place next, grievant was alleged to have grabbed the individual in custody and forced him to the ground, causing some injury to his mouth. The incident was captured on video, but no audio was recorded. Grievant was dismissed because of alleged excessive use of force. The matter was unresolved in the grievance procedure and ultimately was submitted to Arbitrator Steven Wolf for decision.  Lehigh Valley Ramblings blog links to Arbitrator Wolf's Award here.

Arbitrator Wolf noted that the dispute "illustrates ... the sometimes fine line that Police Officers must observe- namely, the exercise of appropriate force in order either to subdue or maintain safe control of a suspect in custody." Nevertheless, he concluded: "The Borough here argues that, under the circumstances present on June 4, 2012, the grievant crossed that line and exercised excessive force when attempting to render [the prisoner] compliant in the holding area. I agree."

The Arbitrator determined that the grievant's account of the incident was "materially incorrect," and at odds with the video. He concluded:

The totality of the evidence persuades me that the grievant patently exceeded the force reasonably needed to subdue the intoxicated, injured, and handcuffed [prisoner] on June 4, 2012. His Incident Report Form, both by commission and omission, is, in my view, a misrepresentation of the
relevant events. Severe discipline was surely for just cause.

However, noting that grievant had produced three character witnesses, and testified that it had become his lifetime goal to pursue Police work, the Arbitrator concluded that he should be afforded "one final opportunity" to do so. While noting he was not minimizing grievant's "reckless and unprofessional performance" he awarded a "last chance" to demonstrate he was capable of sustaining a career in law enforcement. Accordingly he reinstated him, but concluded that "Any further documented acts of excessive force will result in grievant's termination without recourse to the grievance and arbitration process."

According to a report in Lehighvalleylive.com, the Fountain Hill Police Association has filed a petition with the County Court claiming the Arbitrator's imposition of the "last chance" condition exceeded his jurisdiction by denying grievant a just cause determination for any future acts of excessive force. Arbitrator's controversial decision for fired officer leads to new legal challenge for Fountain Hill.  According to the Union's lawyer, the Arbitrator's Award would leave grievant without any meaningful review of future alleged acts.

The issue of an Arbitrator's conditional reinstatement of a grievant is discussed in a previous post here.

Reinstatement with Conditions - Last Chance Awards

Arbitrator Thomas Gallagher has issued an award in a dispute between the Teamsters and Associated Milk Producers. The case involved the termination of an employee for excessive absenteeism. While finding that the employee's record of poor attendance would ordinarily be sufficient  to justify his termination, the Arbitrator concluded that the employee's long service and his difficulty adjusting to a change from night shift to day shift merited a reduction in the discipline. Accordingly he ordered the grievant reinstated, but imposed certain conditions on that reinstatement:

   If the grievant fails to attend in accord with the conditions stated in the award, his reinstatement will end without the opportunity to grieve just cause issues. By force of this award, the parties will not be required to re-litigate just cause issues if grievant does not abide by the conditions of his reinstatement.
.
 The award provided that grievant's reinstatement would end if he exceeded a listed number of tardies/lateness in the two years following his reinstatement. During the third year after his reinstatement the conditional nature of the reinstatement will end and grievant "will be subject to the same progressive-discipline standard the Employer follows for other employees..."

While reinstatement with conditions is not uncommon, especially in attendance cases or cases involving substance abuse, Arbitrator Anthony Sinicropi, in a presentation to the National Academy of Arbitrators in 1981, entered a note of caution:

It is important to stress that a conditional reinstatement may, in the abstract, be a suitable way of dealing with an industrial problem. In the final analysis, however, the parties must implement the award and, in the process, it is not uncommon that the conditions imposed by the arbitrator will cause another round of litigation in the arbitral forum, which in turn, may create continued antagonism between the parties. The arbitrator, rather than acting as the parties' contract reader, instead becomes a "legislator" and an important and sometimes unwanted fixture in the grievance process.

Negotiated last chance agreements have also, on occasion, generated their own disputes. Arbitrator Donald Ryce sets forth some of those issues in  Arbitrating A Last Chance Agreement (LCA).