Off duty misconduct, just cause, burden of proof and leniency

All of these topics are  addressed in a recent award by Arbitrator Howell Lankford in International Association of Firefighters, Local 27 and City of Seattle Fire Department. Arbitrator Lankford denies the grievance filed on behalf of a firefighter for actions relating to an alleged assault on homeless individuals in the City's Pioneer Square area.

While off duty, grievant and two friends attended a Seattle Sounders game. Before, during and after the game, grievant consumed a number of drinks. At some point grievant and his friends were walking to a local restaurant when they observed several homeless people on or near the Fallen Fireman's Memorial. A dispute ensued and became physical and the fighting continued for about eight minutes. The identity of the aggressor was disputed, but grievant and his friends were arrested for assault.

After an investigation, grievant's employment was terminated. The charges specified in the Notice of Termination included: 1. Aggressive Fighting with Homeless Victims, 2. Interference with Law Enforcement Investigation, 3. Misuse of Position, and 4 Negative Community Impact.

The termination was grieved and ultimately brought to arbitration before Arbitrator Lankford.

In deciding the issue, Arbitrator Lankford first reviewed the concept of "just cause." He observed:

Many learned volumes have been written on the notion of just cause in American labor arbitration. In the end, however, just cause is simply a distillation of our shared response to some of the common, occasional shortcomings of employee discipline. Most of the issues arising under the just cause standard divide into three classes: It is not just to discipline an employee for misbehavior that he or she did not actually commit. It is not just to exact a disciplinary penalty which the employee could not have known to be a possible consequence of such misbehavior. And it is not just to administer the disciplinary process in fundamentally unfair and irregular ways.5

__________
5The Department proposes arbitrator Daugherty’s “seven tests” from Enterprise Wire and other reported cases ... . The “seven tests” have generated a very substantial body of scholarly discussion, but that approach does not represent the view of a majority—or even a very substantial minority—of current main line American labor arbitrators.

Applying these standards, Arbitrator Lankford addressed the appropriate burden of proof. He rejected the Union's contention that the City should be held to a "beyond a reasonable doubt" standard, but also rejected the City's claim that it should be held only to a preponderance of the evidence test. He concluded:

The Union points out that NAA arbitrator Mike Beck wrote in 2005 in a case between SEIU 925 and King County that “...in discharge cases involving alleged...stigmatizing behavior a significant number of arbitrators impose a beyond a reasonable doubt standard.” (At 24.) But in that case arbitrator Beck honored the ‘beyond a reasonable doubt’ standard only in the breach. The cited case did involve stigmatizing misbehavior and what arbitrator Beck actually required was proof by clear and convincing evidence. In my first 30-odd years as a labor arbitrator, I have not yet heard or read a case in which it would have been appropriate to require proof beyond a reasonable doubt. On the other hand, I agree that a majority of main line labor arbitrators recognize that some discharge cases—those alleging misbehavior that would be criminal and would have catastrophic career implications—require proof by clear and convincing evidence. Because this is not such a factually close case that the measure of the City’s burden of proof matters to the outcome, I assume without deciding that the City must prove its case by clear and convincing evidence.

On the merits, and relying primarily on several recorded 911 calls made at the time of the incident, the Arbitrator concluded that the City had established that grievant had instigated, escalated and returned after having an opportunity to disengage. He rejected the Union's claim that grievant's acquittal on a misdemeanor charge of assault and malicious harassment of the homeless preluded a finding of just cause, noting the differing burden's of proof and evidentiary standards. He also found that the City had established that grievant interfered with the police investigation by actively misleading police officers on the scene. He also concluded that the evidence "clearly established" that grievant's conduct had a significant impact on the Department's relationship with the community, and in particular the homeless community. However he found unsupported the allegation grievant had requested special consideration because of his status as a firefighter. Based on these findings, he found the City had just cause for the termination.

Finally he declined the Union's request that grievant be given a "second chance" because he had  entered and successfully completed an alcohol rehabilitation program, noting:

In the past, as in the case of [], the Department has given some firefighters a second chance in light of such a voluntary submission to treatment. If I were the Department, I might extend that same discretion to [grievant], but that is the Department’s discretion, not an arbitrator’s.25 The Department established just cause for his discharge by clear and convincing evidence, and the Union’s grievance must be dismissed.

__

25The Department quotes the renowned arbitrator Whitney McCoy, from the very first volune of BNA’s collection of labor arbitration awards: “The only circumstances under which a penalty imposed by management can be rightfully set aside by an arbitrator are those where discrimination, unfairness, or capricious and arbitrary action are proved—in other words, where there has been an abuse of discretion.” Stoakham Pipe Fittings Co., 1 LA 160, 162 (1945). One part of arbitrator Daugherty’s Enterprise Wire discussion that remains valid almost 50 years after its publication is his observation that “lieniency is the prerogative of the employer rather than of the arbitrator; and the latter is not supposed to substitute his judgment in this area for that of the company unless there is compelling evidence that the company abused its discretion.” 46 LA 359, n4 (1966). In this instance, I cannot find a basis for concluding that the Department’s decision to discharge [grievant] was an abuse of its discretion.

The Seattle Times reports on this dispute, Seattle firefighter, acquitted in attack on homeless in park, fails to win his job back and links to the award here.

For another case discussing the impact of an acquittal on the just cause issue see Acquitted of criminal charges, but just cause for dismissal

Public policy, professors and firefighters

Two recent cases reach differing results in addressing requests to set aside arbitration awards as contrary to public policy.

In Slippery Rock University of Pennsylvania, PSSHE v. Association of PA State College and University Faculty the Commonwealth Court of Pennsylvania reversed an arbitrator's award reinstating a tenured professor who had been dismissed after allegedly engaging in inappropriate and offensive conduct toward University students while on a spring break trip to Spain.

The arbitrator sustained a grievance over the dismissal, concluding that the professor had not been provided with a "complaint" within the meaning of the cba. The Court rejected the arbitrator's analysis, finding it had no support in the cba. Separately, however, it found that reinstatement of the professor would violate the State's public policy. The Court noted:

Given that the transgressions at issue in the subject grievance are of a sexual nature perpetrated against a student(s) at one of the Commonwealth’s universities within the PASSHE by an individual who was not only a full professor but also a department chair, we must reject the arbitration award on compelling public policy grounds. The clearly established public policy and duty to protect students from sexual discrimination in any form has long been recognized.[fn]
[fn] In rejecting this arbitration award on the additional basis of public policy, we note that the award was rendered in the wake of the events that have engulfed another Commonwealth university within PASSHE for alleged failure to properly heed and respond to prior warnings of egregious sexual misconduct. While the incident in the matter at hand is not of the same nature, it is nonetheless another instance of misconduct of a sexual manner involving someone in a position of trust and responsibility over students at a Commonwealth university.

Independent of its finding that the award did not draw its essence from the cba, the Court found that the award reinstating the Professor with full back pay despite what it believed to be undisputed evidence of misconduct "prevents the University from properly implementing its policy prohibiting such behavior."

In another case, involving the dismissal of a firefighter-paramedic, the Ohio Court of Appeals rejected the public policy arguments of the employer. In its decision in City of North Royalton v. Robert Ulrich, et al.  the Court affirmed the arbitrator's decision reinstating the grievant. Grievant had responded to an overdose scene and treated and transported the patient. While initially telling the dispatcher that all drugs and drug paraphernalia had been flushed down the toilet, he subsequently reported to the police that he discovered a packet containing drugs in the ambulance and believed that it had fallen out of the patient's pants. An investigation revealed that in fact grievant had removed the drugs from the scene and placed them in the ambulance. Grievant was dismissed, but an arbitrator ordered his reinstatement without back pay.

 The City sought to set aside the award, arguing that reinstatement of a firefighter who falsified a police report was contrary to public policy.

Rejecting this claim, the Court acknowledged that it had previously held that reinstatement of a police officer who falsified a report was contrary to public policy, but held that the same standard did not apply to firefighters. Explaining the distinction, the Court observed:

In recognizing that a clear public policy existed in prohibiting the reinstatement of police officers who falsified reports, the Fourth District specifically emphasized that the statute recognizes that “the police force of a municipal corporation is obligated to ‘preserve the peace, protect persons and property, and obey and enforce * * * all criminal laws of the states and the United States.” … The court further recognized that “honesty is vital to the effective performance of these duties and to ensuring public trust and confidence in the police force.” … These same considerations, however, do not apply to a firefighter–paramedic nor are they delineated under the statute with respect to firefighters.

      Thus, while we certainly do not condone dishonesty and recognize that it is disfavored in the workplace, we cannot say that a dominant, well-defined public policy exists that all acts of dishonesty warrant immediate termination of a firefighter– paramedic’s employment. We likewise cannot say that a clear public policy precludes the reinstatement of a firefighter– paramedic who has provided inaccurate written reports or a false witness statement to the police. Accordingly, we find no merit to the City’s claim that the trial court erred in failing to vacate the arbitrator’s award as being against public policy.

Facebook posting exacerbates misconduct, Arbitrator upholds termination

On February 21, 2013 a Bethlehem, PA firefighter notified the Department that he would be using sick leave the following day. Pursuant to the cba between the City of Bethlehem and the International Association of Firefighters, Local 735, employees utilizing sick leave "are required to remain in their homes for rest and recuperation." They were authorized to leave home only for healthcare related appointments or activities relating to treatment of their illness or for family emergencies. Notwithstanding this provision, the firefighter left his home on the 22nd to attend a local fair, and posted pictures from the fair on Facebook. He also visited a political tent at the fair.

The firefighter also called in sick on the 23d. He left his home that day to go to a pharmacy to fill a prescription. On his way, however, he stopped at a local firehouse. After picking up the prescription, he went to a local bar/restaurant. After leaving the bar he was involved in a serious accident and it was determined that his blood alcohol content was more than three times the legal limit. Following an investigation his employment was terminated.

 At arbitration the City acknowledged that it would not have terminated grievant simply for leaving his home on the 22nd and 23rd, but "considered his entire course of conduct"  in concluding that he had violated both the cba and the City's Code of Ethics. It also acknowledged that it would not have terminated his employment solely for a DUI arrest, but again noted that the termination was for the entire course of conduct.

Arbitrator Walt De Treux denied the grievance and found that the City had just cause for its actions.

Initially Arbitrator De Treux concluded that Grievant had not only disregarded the contract's restrictions on leaving home while on sick leave, but he had advertised his disregard by his Facebook postings. The Arbitrator noted:

[Grievant] was terminated for both sick leave violation and the conduct in which he engaged while away from his home that brought discredit to [Grievant] and the City in violation of the Code of Ethics. As noted, the sick leave violations-leaving home- would warrant discipline significantly less than discharge, perhaps a warning or minimal; suspension. But [Grievant] left his home on August 22, and as the City describes it , he 'documented and advertised' his travels by posting pictures of the fair on Facebook and visiting the political tent. In so doing he showed utter disregard for the contractual command to remain home while on sick leave. It is one level of violation if he went to a neighbor's house or attended a sporting event for a child, but the Grievant escalated the severity of the violation by documenting and advertising his activities.

Arbitrator De Treux also found Grievant's actions on the 23d continued to demonstate a "blatant disregard"  for the contractual obligation to remain at home while on sick leave. The Arbitrator distinguished other cases in which off duty employees with DUI arrests were not dismissed, finding that Grievant was not "off duty" in the traditional sense but was receiving sick leave benefits on the condition that he remain at home. The Arbitrator concluded that the conduct engaged in by the Grievant was more similar to that involving an on duty employee.

Finally, the Arbitrator rejected the Union's reliance on Grievant's 17 years with the Department as a reason to reduce the discipline, observing that this was one of the "uncommon" cases where Grievant's experience weighed against him. Arbitrator De Treux determined "[a]s a long term employee and a former union official, [Grievant] knew or should have known the responsibility to adhere to the contract and Code of Ethics and the consequences of abdicating that responsibility."

A slightly redacted copy of the Arbitrator's award can be found here.

Arbitrator finds DC Fire Chief retaliated against Union President

Arbitrator (and former NLRB Administrative Law Judge) Leonard Wagman  has upheld a grievance filed by the International Association of Firefighters, Local 36. Arbitrator Wagman summarized the dispute:

Local 36 contends that the Department involuntarily transferred Captain Edward Smith from Rescue Squad 1 to Engine 7 because he engaged in union activity, and thereby violated Article 19, Section A, and Article 2, Section A of the CBA. The Union also argues that the Department's failure to comply with Captain Smiths request for the reason for that transfer violated Article 19, Section B(2) of the CBA. The Department seeks denial of the grievance on the ground that Local 36 has failed to show that union activity motivated the decision to transfer the  Grievant and that the Department has satisfied its burden of providing a written reason to Captain Smith for his involuntary transfer to Engine 7. As set forth below, I find merit in Local 36's contentions.

Arbitrator Wagman rejected the Department's defenses, finding its explanations for the disputed transfer "has gone from evasion to shifting reasons for its conduct."

Concluding that the transfer was in fact undertaken in retaliation for the Captain's union activity the Arbitrator ordered the Department to rescind the transfer and to reinstate him to his former position.

Statter911.com links to the award here.

Conflicting views on the appropriate standard of proof in termination cases

As noted in an earlier post here, Arbitrator Michael Rappaport upheld a grievance filed by a firefighter whose employment was terminated for alleged sick leave abuse. The Las Vegas Sun links to his award here. The firefighter was accused of planning in advance when he would take sick leave so that , combined with his vacation, he could take most of the summer off. In addressing the issue, Arbitrator Rappaport discusses his view of the appropriate standard of proof in a termination case. He notes:

In many cases a union will typically argue that the employer should have the burden of proof beyond a reasonable doubt. This is because the union will typically argue that a termination case is equivalent to capital punishment in the labor relations world. Conversely, employers often argue that the burden of proof in a termination case should simply be a preponderance of the evidence since a disciplinary case arises out of the collective bargaining agreement and, therefore, it is contractual in nature. In the Arbitrator’s experience, most arbitrators, including the present Arbitrator, reject both of those arguments and instead tend to regard the appropriate burden as clear and convincing. That is to say, an arbitrator wants to be clearly convinced that the grievant in a termination case committed the acts as alleged that would justify termination.

Arbitrator Rappaport concluded that while the Fire Department had raised suspicions regarding the issue, it had failed to meet its burden of proof.

He also noted that the case involved an allegation of moral turpitude, i.e. dishonesty, and that this further supported the need for a higher standard of proof “because upholding a termination under such circumstances not only is likely to result in loss of the job at issue, but could also brand the discharged employee as dishonest or someone who is not to be trusted when applying for any future employment.”

Unlike the arbitrator whose award was vacated in Decatur Police Benevolent and Protective Association Labor Committee v. City of Decatur , (discussed here), Arbitrator Rappaport made no finding that on a lesser standard the grievant engaged in the conduct alleged. In the Decatur case, the court found no support for the arbitrator’s application of a “clear and convincing” standard and vacated an award reinstating a police officer found, on a preponderance of evidence standard but not on a clear and convincing standard, to have engaged in domestic violence. The court noted “We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer.”