Another case on zero tolerance, just cause, and a failed drug test

 A recent post discussed a challenge to an arbitrator's award where the Company claimed that the arbitrator ignored the violation of its zero tolerance policy for drug use and improperly reinstated an employee, albeit without back pay. Zero tolerance, a drug test and just cause.  A similar issue is raised by a complaint filed by Colonial Wholesale Beverage Company seeking to vacate an award of Arbitrator Lawrence Holden. The dispute arose from the termination of an employee who tested positive for cocaine during a random drug test. 

Grievant acknowledged having used cocaine on a Saturday evening, August 10, but maintained that this was a one time event caused by his celebration of obtaining his "dream house." His first report to work following the Saturday night use was Tuesday, August 13, and he worked through August 20 when he was notified that a random drug test administered on August 16 had tested positive. 

Following receipt of the test results, the Company terminated the employee pursuant to what it described as its zero tolerance policy for drug use and for reporting for work under the influence of drugs or alcohol. It relied on a provision of the cba affirming that "the Union and the Employer agree that employees shall not engage in the unlawful use, purchase or sale of illicit drugs," language in its Employee Handbook that prohibits employees from reporting to work or working while under the influence of drugs or alcohol and that "an employee who engages in the above prohibited conduct is subject to disciplinary action up to and including immediate termination." 

The Union challenged the existence of  a zero tolerance policy, arguing that the Company maintained a second chance policy for employees who successfully completed a post termination drug treatment program, and that the Employee Handbook indicated the Company retained disciplinary discretion when an employee failed a drug or alcohol test. Such discretion, it argued, was inconsistent with a zero tolerance policy. 

The issue submitted to Arbitrator Holden was 

Did the Employer have just cause to terminate the employment of the grievant ... on or about August 26, 2019? If not, what shall be the remedy?

In his award, Arbitrator Holden noted that it was undisputed that grievant had tested positive for the presence of cocaine in his system. He then observed 

The dispute in this case is over what should be the appropriate outcome for the grievance in light of his positive test result.

He concluded that the evidence established that the Company "has retained discretion, bound by the contractual principle of just cause decision-making, as to the manner in which it will deal with violations of the substance abuse policy." He based this conclusion in part on the absence of any reference to a "zero tolerance policy enforced by summary discharge" and the absence of illicit drug use from the list of "cardinal sins" in the cba for which no written notice must be given prior to discharge. He also observed that 

If there were a zero tolerance policy in place, more than likely the Employee Handbook would have said so by stating that any employee who participated in substance abuse shall be terminated immediately.

Resolving another  contested issue, he found that a Notice issued by a previous Human Resources Director describing a "one chance to rehab" policy had been posted in the workplace despite testimony from Company witnesses that they were unfamiliar with this Notice and had never observed it. 

Arbitrator Holden found that grievant had violated the contractual prohibition on use of illicit drugs, but he found no evidence that he was under the influence at work. He ordered that grievant be reinstated without back pay. 

The Company's effort to have the award vacated asserts that the Arbitrator improperly ignored the stipulated issue by focusing on the question of remedy rather than "the limited question posed to him by the parties, which was whether the Plaintiff had just cause to terminate [grievant]." It asserts also that he ignored the contract's grant of authority to the Company to relieve employees for legitimate business reasons and the discretion to terminate an employee without warning "for violating the broad catch-all of 'any serious matter'." It alleges that the Arbitrator exceeded his authority under the cba, improperly and contrary to the cba "added to or modified" then agreement  and requests that the Court vacate the Award. 

Update: The District Court rejected Colonial's request to vacate the award and granted the Union's request to confirm. Colonial Wholesale Beverage v. Local 59, International Brotherhood of Teamsters

Recent Decisions - Last Chance Agreement, "substantive due process" and police use of force

Arbitrator ignored Last Chance Agreement - Award vacated

The Sixth Circuit has affirmed a District Court decision vacating an award of Arbitrator John M. Felice. Tecnocap, LLC v. Graphic Communications Conference/International Brotherhood of Teamsters, Local 24M   Grievant was terminated after an absence caused by his car breaking down. Relying on a last chance agreement entered into by grievant and the Union, the employer terminated his employment. While acknowledging the LCA, the Arbitrator concluded:

 The fundamental principle underlying the discharge of an employee is that management must have just cause for imposing the discharge. The Company in the instant case appears to be applying its Policy in a punitive fashion. Simply because an employee is absent a specific number of times and accumulates a certain number of points does not, ipso facto provide for automatic discharge. No policy can vitiate the right of the Union to challenge whether the cause asserted for discharge is just under the CBA. To recognize such a policy through arbitration would be unreasonable since it would contravene the express intent and purpose of establishing and specifying cause for discharge under a labor agreement.

Finding that the Company had failed to meet the "fundamental indicia of just cause," the Arbitrator sustained the grievance and ordered the grievant's reinstatement with back pay.

The Company sought to have the award vacated and the District Court did so. here The Court concluded that the Arbitrator had exceeded his authority by ignoring the last chance agreement.

The Sixth Circuit (2-1) affirmed. It noted:

... an LCA is an agreed-upon predetermination of “just cause.” It is a concession by the employee (and the union) that the employer already had “just cause” to discipline the employee, who is thereafter on the grace of one “last chance” in exchange for a promise of compliance, the violation of which all three agree will be “just cause” for immediate discipline. ...  The employee is given ‘one last chance’ to correct his errant behavior, in exchange for which he agrees to certain conditions[,] . . . [the] failure to live up to [which] is [almost always] grounds for immediate dismissal, without the opportunity to file a grievance. . . .”). By signing the LCA in this case, both Witherow and the Union agreed that if Witherow had an unexcused absence in the next eight months, Tecnocap would have “just cause” to fire him.

Concluding that the LCA was an "agreed-upon predetermination of just cause" the Court affirmed the decision of the lower court.

Last chance agreements are also discussed in Last Chance Agreements- Arbitrability of triggering event

Arbitrator's reliance on "substantive due process" beyond the provisions of the cba, award vacated

The District Court in Kentucky vacated an award of Arbitrator Stephen L. Hayford reinstating an employee terminated pursuant to the employer's no fault attendance policy. Zeon Chemicals, L.P v. United Food and Commercial Works, Local 72D

Grievant's final absence resulted from his 30 day incarceration because of a plea to two charges of  battery in connection with an off duty incident. That absence put him at the point of termination pursuant to the employer's policy.  The Union grieved, arguing, inter alia, that the employer had the discretion under the policy to impose a thirty day suspension but refused to do so. The policy provided that, if an employee has 20 or more years of service "The Company may, at its discretion, impose a 30-day suspensions as an alternative to termination ... "  While acknowledging that grievant's accumulation of points under the employer's policy created prima facia proof that his discharge was for just cause, the Arbitrator concluded that other factors militated against termination. In particular he noted:

The substantive due process element of the contractual just cause standard contemplates that in this type of highly unusual situation, before terminating an employee under the ACP the Company will fully investigate the circumstances that led to the employee's exceeding  the 12 points total termination threshold of the Policy's progressive discipline procedure. This is especially imperative when the precipitating absences of an employee are due to off-duty misconduct that involves a felony criminal offense indicating moral turpitude on the employee's part. The Company's choosing not to investigate the events of July 15, 2015, that eventually resulted in [grievant's] being absent from the workplace ... was a serious omission on its part that arrived [grievant's] contractual right to substantive due process. It is a significant mitigating factor.

The Arbitrator reduced the termination to a 30 day suspension.

The District Court granted the Company's request to vacate the award. Rejecting the Arbitrator's reliance on the concept of "substantive due process" the Court concluded:

With this, it appears that the Arbitrator was not engaged in legitimate interpretation of the CBA, but referenced substantive due process solely to "dispense his own brand of industrial justice[]" in contravention of the explicit terms of the CBA. United Transp., 700 F.3d at 902 (citation omitted); see Mich. Family, 475 F.3d at 753. By employing the "interpolative reasoning underlying substantive due process," the Arbitrator effectively imposed upon the Company additional requirements found nowhere in the language of the CBA. The Arbitrator in this instance conflated the "just cause" language from Article III with the terms of the ACP to fashion a new requirement that the Company conduct an investigation into the facts surrounding an employee's accumulation of 12 points under the ACP. (Arbitration Award 21). Moreover, the Arbitrator essentially fashioned an additional subjective condition by requiring the Company "to make a full, fair and informed determination of whether exercise of its discretion to impose a suspension" and then held the Company failed in this regard, although the CBA explicitly leaves this determination to the Company's discretion and Jenkins never requested that he be suspended. (Arbitration Award 22). By the CBA's own explicit language, this provision of the ACP affords the Company the right to terminate any employee who exceeds 12 points under the attendance policy.

Finding that the Arbitrator "entirely disregarded" the plain language of the cba, the Court vacated the award.

Update: The Sixth Circuit reversed the decision of the District Court and reinstated the Arbitrator's award. Zeon Chemicals, L.P v. United Food and Commercial Works, Local 72D

Jury verdict finding excessive force insufficient to support termination

Arbitrator Peter R. Meyers overturned the termination of an Oak Park, Illinois police officer who had been dismissed for several alleged offense, most seriously the use of excessive force during his handling of a domestic violence call.  Illinois Fraternal Order of Police Labor Council and Village of Oak Park, Illinois.

An individual arrested and charged with domestic violence subsequently sued the Village and grievant, alleging grievant had used unnecessary and excessive force during the arrest.  A jury returned a verdict for plaintiff for $35,000. As a result of the verdict, the Chief ordered an investigation of the underlying incident. That investigation did not support a finding of excessive force, but did reveal what were alleged to be grievant's failure to have submitted a use of force form,  failure to properly secure evidence, and failure to provide the victim with paperwork required by the Illinois Domestic Violence Act.  Based on a review of transcripts in both the criminal trial for domestic violence and the civil case, the Village also concluded that "grievant had given untruthful testimony" that 'almost probably' met the standard of perjury under Illinois law.

Despite the initial conclusion that the evidence did not support a charge of use of excessive force, the Notice of Termination included this allegation as one of charges supporting grievant's ultimate termination.

In his award, Arbitrator Meyers noted that no explanation was provided for the inclusion of this unsupported claim except that the Chief's finding was based "almost entirely" upon the verdict in the civil case. Rejecting reliance on the jury's decision, the Arbitrator noted he must make the decision based on the evidence before him at the hearing, and that the award was entitled to no "precedential effect." He observed:

The Village has made much of the jury verdict in Durden’s favor in his civil rights suit against the Village and the Grievant, but this verdict has no impact here. Not only was the damages amount awarded to Durden basically nothing more than nuisance value, but Durden’s own testimony indicated that officers other than the Grievant were responsible for many of his claimed injuries and claimed civil rights violations. Just as a finding in an unemployment compensation hearing that the terminated employee was unfairly terminated has no weight or bearing on the subsequent arbitration over a just cause termination, so does a $35,000.00 judgment by a jury in a civil case where the standard of proof is different.

Based on the evidence and testimony presented at the hearing Arbitrator Meyers found no support for the allegation of use of excessive force. He also rejected several of the Village's other allegations as unsupported by credible evidence. Accordingly he found the termination to be without just case. Finding  merit to some of the other charges, Arbitrator Meyers converted the termination to a 30 day suspension.

Officer's use of force not unreasonable, Chief's subjective evaluation not supported by objective analysis

Arbitrator Daniel Saling upheld a grievance filed on behalf of a Tallahassee, FL police officer dismissed following an Internal Affairs investigation into a shooting incident. Florida Police Benevolent Association and City of Tallahassee The facts were largely undisputed. While on patrol, grievant had pulled behind what he believed to be a suspicious vehicle. The Arbitrator summarized what happened next:

On March 17, 2017, the Grievant was checking on a suspicious vehicle in a parking lot in front of a city owned building. When the Grievant got out of his marked patrol vehicle to speak with the occupant in the suspicious vehicle, the suspicious vehicle was placed in reverse and struck the Grievant's patrol vehicle, which then stuck the Grievant. The Grievant was without backup in a deserted parking lot and he drew his firearm and fired six shots into the driver side of the suspect's vehicle.

The vehicle left the area and was chased by Sheriff's Deputies.

 The Chief assigned the Department of Internal Affairs to conduct an investigation into grievant's actions during the incident. The initial report from IA found grievant's use of force reasonable. The Chief review that report and questioned the decision because it did not address the issue of "imminent danger" as set forth in the Department's Policy. That Policy provides "Officers may use deadly force only when they believe it is objectively reasonable to defend their life or the life of another person from imminent threat of great bodily harm or death." The IA investigator rewrote there report, changing the conclusion, and finding that grievant had not used reasonable force.  Grievant's employment was terminated, and the dispute was grieved and ultimately submitted to Arbitrator Saking for resolution.

Upholding the grievance, Arbitrator Saling concluded that grievant in fact "reasonably and objectively determined" that he was in imminent danger. Rejecting the conclusion of the modified finding he found:

The investigation by the lA Investigator was completed and there was a decision that the Grievant's conduct on the date of the incident, was within the provision of General Order 60, but the decision was changed when Chief DeLeo met with the lA Investigator and indicated that he subjectively did not believe the Grievant was in imminent danger. Chief DeLeo subjective evaluation of the incident is not supported by an objective analysis of the facts surrounding the incident.

Finding the Department's decision failed to follow the admonition found in the Supreme Court's Graham decision that an officer's judgment should not be evaluated based on hindsight, the Arbitrator ordered the grievant be reinstated with back pay.

A case containing a similar analysis is discussed in Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices"

Grievance timelines, threats in the workplace and public policy

All of these topics are discussed in the recent decision of the Eleventh Circuit in Peco Foods Inc. v. Retail Wholesale and Department Store Union Mid-South Council.

The case originated with the termination of an individual alleged to have made a threat of violence during a Company safety meeting. During the meeting, the supervisor advised the employees that individuals on the prior shift had been throwing ice, and reminded the employees that such conduct was contrary to Company policy. Grievant responded "I don't throw ice, I throw lead." Several employees laughed at this response. The supervisor reported this comment to his supervisor, and sometime later that morning grievant was called to a conference room where he as questioned about the comment. Grievant admitted he had made the comment but stated he hadn't meant anything by it. In response to a stewards question, grievant's supervisor acknowledged that he had not felt threatened by the comment but reported it because of a recent workplace shooting at another company. At the conclusion of the meeting grievant was sent home for the day. The next morning, grievant's employment was terminated. The termination was grieved and ultimately submitted to Arbitrator William H. Holly for resolution.

At the arbitration, the Company argued that the Arbitrator did not have jurisdiction to hear the dispute because the Union had waited too long to appeal the case to arbitration. The cba required an appeal to be made "within fifteen (15) calendar days of . . . [Peco's] answer at Step 3 of the grievance procedure." The Union had filed its appeal thirteen days beyond that deadline. On the merits, the Company maintained that grievant's undisputed comment was "tantamount to a workplace violence threat"and that based on recent workplace violence incidents any discipline short of termination would not be justified.

The Union argued that the parties did not have a history of strict adherence to timelines and that the Company had not raised this issue until the arbitration. It also argued that the termination of a long service employees for this comment was unjustified since the comment was not threatening, was not directed at any individual, was made in a lighthearted tone, and was not perceived as threatening by anyone present.

Arbitrator Holley, after reviewing the facts and a number of prior awards and treatises, sustained the grievance. He first concluded that the Company had waived any reliance on the Union's delayed appeal to arbitration. He observed:

In thus matter, the Company fully participated in meetings after the Step 3, in selecting the arbitrator, and in establishing a place, time, and date for the hearing without mention of a procedural defect in the processing of the Grievance. Therefore, the conclusion is that the Company accepted the grievance and waive[d] its challenge to the Grievance procedural arbitrability.

On the merits, the Arbitrator found

In this matter, [Grievant] was not specific; he did not direct his words at anyone; no one considered his words to "be threatening", even his supervisor; no one called the police; he was not sent home immediately; he apologized for making the statements a short time after he made the statement. [Grievant] could not explain what he meant because it was a "stupid" comment, but short of a threatening comment.

Peco sought to vacate the award, both as beyond the jurisdiction of the arbitrator because of the Union's untimely appeal and as contrary to "public policy against violence and threatening behavior in the workplace." The District Court (here) and now the Eleventh Circuit (here) rejected these efforts. Both found that the decision concerning the Employer's waiver of the time limits to be within the authority of the arbitrator. The Eleventh Circuit concluded:

We therefore agree with the district court that the arbitrator was acting within his broad discretion to interpret and apply the terms of the Agreement in concluding that Peco waived its challenge through its conduct. See, e.g., Mosher Steel, 796 F.2d at 1366 (courts must "uphold an arbitrable award that is premised on the arbitrator's construction of the contract and his understanding of the intent of the parties") (quoting Drummond, 748 F.2d at 1497).

  Both the District Court and the Eleventh Circuit also rejected the Employer's public policy claim, noting that the Arbitrator had found that no "threat" had taken place.  On  this point, the Circuit noted:

Peco's public policy argument rests entirely upon its assertion that [Grievant's] comment about "throwing lead" was a threat of workplace violence. But the arbitrator found that [Grievant's] statement was not a threat of violence, and this Court is not permitted to second-guess the arbitrator's findings of fact. ...  That is because "[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them." ... Nor are we permitted to second guess the arbitrator's findings of fact merely because we are "inquiring into a possible violation of public policy."

While upholding the arbitrator's award, the Court refused the Union's request for attorney fees, finding the Company's appeal meritless but not frivolous.

Arbitrator Holley's award can be found here.

Fitness for duty, just cause and the role of the arbitrator

These were the topics addressed in a recent decision of the Appellate Court of Illinois in The City of Rockford v. Policemen's Benevolent and Protective Association, Unit 6.

Grievant was employed by the City as a police officer. In August of 2009 he was involved in an altercation involving a hand to hand struggle with a suspect over the officer's weapon. During the altercation grievant shot and killed the suspect. The case was presented to a grand jury but no indictment followed. Grievant was not disciplined for his actions during this incident. After the shooting, grievant was placed on paid leave and was treated for PTSD. In July of 2010 the Chief ordered him to report for a psychological fitness for duty exam. The city retained an expert to examine grievant, and grievant, as was his right under the labor agreement, retained his own expert.

The City's expert found grievant unfit for duty, while grievant's reached a contrary conclusion. Relying on the report of its retained doctor, the City terminated grievant's employment. That termination was grieved and submitted to Arbitrator Elizabeth Simon for resolution.

The arbitration hearing was bifurcated. The arbitrator first addressed the Union's contention that in light of the conflicting medical opinions the City had no right to proceed to termination. The arbitrator rejected this claim, finding that there was no contractual prohibition on the City proceeding but noting that any decision was subject to the just cause provision of the labor agreement. The matter then proceeded to a second hearing on whether the City's action was supported by just cause.

After the second hearing the arbitrator found that the City failed to prove grievant's unfitness for duty. She largely rejected the conclusion of the City's doctor and found grievant's expert more persuasive. She ordered the City to reinstate grievant to the position he held immediately prior to his termination. However, she further ordered that before he could return to active duty he would be required to be evaluated by a third psychologist whose fitness determination would be final.

The City sought to vacate Arbitrator Simon's award. The circuit court confirmed the just cause portion of the award, but vacated the remedy provision, remanding the case to the arbitrator to create a new remedy in which the arbitrator retained decision-making authority. The City appealed that decision, and the Union appealed the Court's rejection of its efforts to obtain back pay.

The Appellate Court has now affirmed, upholding of the arbitrator's just cause determination but vacating that portion of the award dealing with the remedy.

The court found no basis to overturn the arbitrator's just cause analysis. It rejected the City's public policy challenge, finding it "based on rejecting a factual determination by the arbitrator." It also questioned the City's approach, noting:

The City’s argument that it should not be limited by section 1.2’s just-cause requirement caused much confusion in this case. The City essentially argued that it should have the power to terminate based on section 15.15 alone (unfitness), without the limitations of section 1.2 (just cause). In this way, the City encouraged the arbitrator to view the ultimate question as one of fitness, not just cause. By encouraging the arbitrator to view the ultimate question as one of fitness, the City forfeited an opportunity to argue that, even if [grievant's] mental condition did not rise to the level of unfitness, [grievant's] mental condition, combined with other factors, such as policy violations and firearm misuse, could constitute just cause to terminate. We believe that, in erroneously framing the ultimate question as one of fitness, the City invited the arbitrator to issue the somewhat confusing analysis of which the City now complains, including a weak comparison of the experts and a seemingly dissonant remedy. The award reads as though the arbitrator did not realize that she could both find [grievant] unfit and still find no just cause to terminate (based on mitigating factors such as trauma incurred on the job, and, despite prior policy violations, a good disciplinary record and, thus, effective condonation by the department of the policy violations and firearm misuse (see, e.g., Des Plaines, 2015 IL App (1st) 140957, ¶ 13, ¶ 21)). For the reasons stated, however, the arbitrator’s somewhat confusing analysis does not provide a basis to set aside the award in favor of a cleaner analysis, particularly where the City encouraged the arbitrator to view the case as it did.

As to the remedy, however, the Court found that the arbitrator exceeded her authority by effectively delegating the final decision to a psychologist:

The parties bargained for an arbitrator to decide the remedy, not a psychologist. ...Here, the arbitrator placed the question of [grievant's] return to active duty at the sole discretion of a psychologist. We agree with the circuit court that the arbitrator’s remedy “punts” a decision to a psychologist and, thereby, abdicates all “hallmarks of adjudicative procedure.”

The court also found the award inconsistent with the cba, pursuant to which the Chief can appoint an expert and the officer subject to an exam may procure his or her own expert.

Accordingly the court vacated the entire remedy portion of the award and remanded the issue to the arbitrator, which also allows the Union to renew its claim for back pay.

Post termination conduct, just cause and public policy

The saga involving a sheriff's deputy first dismissed for allegedly stealing two potted plants continues.

As discussed here (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension) the deputy was accused of stealing the plants from a city park. Grievant claimed she believed they had been abandoned. Arbitrator Dennis McGilligan, applying a "clear and convincing" burden of proof standard, concluded that the City had failed to establish grievant intended to steal the plants. However he found that she had failed to follow the department's policy on abandoned property and deemed a thirty day suspension appropriate. Reacting to testimony concerning grievants admitted post termination conduct of retail theft (shoplifting) the arbitrator noted that while there was little information in the record concerning the incident he deemed a sixty day suspension appropriate.

The Sheriff's office sought to vacate the award, arguing that the arbitrator utilized the wrong standard of proof and improperly ruled on the shoplifting incident. The court remanded the matter back to Arbitrator McGilligan for reconsideration under a preponderance of the evidence standard, and also agreed with the Sheriff that the shoplifting incident had been improperly considered. On remand the arbitrator again found a thirty day suspension warranted for the claimed plant theft.

The Sheriff's office reinstated grievant in accord with the award but dismissed her for the shoplifting incident.

The propriety of that  termination was submitted to Arbitrator Timothy Tobin. Arbitrator Tobin found that the second termination was also without just cause. (Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination). He found that since grievant was not employed by the Sheriff at the time of the incident there was no basis for discipline. He ordered her reinstatement.

The Sheriff's Office also appealed this decision and, according to press reports, the Sangamon County court has overturned the award. (Decision upholds termination, Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft). According to the reports, Judge John Schmidt concluded that the arbitrator's award "is repugnant to the firm, clear and resolute public policy against retail theft" He observed that such acts "are more disturbing when committed by law enforcement officers sworn to uphold the law." Accordingly he found that required grievant's reinstatement would be contrary to public policy.

Arbitrator's finding that police officer's use of force was reasonable precludes public policy challenge to reinstatement award

On March 30, 2012, Arbitrator Jane Wilkinson ordered the reinstatement of Portland police officer Ronald Frashour. Officer Frashour had been dismissed because of the Chef's conclusion that he had used  excessive force in his fatal shooting of an individual who turned out to be unarmed. The Chief deemed Officer Frashour's conduct contrary to the Department's  use-of-force policies. Arbitrator Wilkinson's award is discussed here. She concluded that the City had failed to establish that the officer's conduct was objectively unreasonable or contrary to the Department's policies. 

The City announced that it would not comply with the arbitrator's award (Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour). It claimed, inter alia, that the award was contrary to public policy. The Portland Police Association filed an unfair labor practice charge with the State's Employment Relations Board. The ERB upheld the award (here), holding that in light of the Arbitrator's findings that there was no basis to the claim the Frashour had violated Department policy there was no public policy bar to his reinstatement. The City appealed the decision to the Oregon Court of Appeals. The City's claims, and the Union's response, are discussed in Police discipline and public policy.

The Court of Appeals has now affirmed the ERB's decision. Portland Police Assn. v. City of Portland. The Court agreed with the ERB's analysis that because the arbitrator found that Frashour "was not guilty of the misconduct for which discipline was imposed" there was no violation of public policy in enforcing the award. The Court also rejected the City's alternate argument that the arbitrator's failure to defer to the decision of the Chief was, itself, contrary to public policy: 

In the city's view, [the ERB's] approach was flawed because it failed to consider that the arbitrator's conclusion that Frashour did not engage in misconduct itself violated public policy, specifically, the public policy, "clearly defined in statute and case law, that deference be given to the determination by the Chief of Police of the City of Portland that Officer Frashour's use of deadly force violated the City's policies." As a result, according to the city, the award was unenforceable under ORS 243.706(1), and the board therefore erred in concluding that the city had committed an unfair labor practice when it refused to implement the award.

The Court noted that "the statute does not appear to impose that same 'public policy' limitation on the arbitrator's review of the misconduct determination itself."  Affirming the conclusion that once the arbitrator concluded that the officer had not committed the misconduct alleged the public policy exception to enforcement of the arbitrator's award simply didn't apply, the Court observed:

the city has failed to identify statutes or judicial decisions "clearly defin[ing]" a public policy requiring deference to a police chief's determination regarding whether an officer has violated a city's use-of-force policies. See Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or.App. 19, 24-25, 61 P.3d 970 (2003) (for ORS 243.706(1) to bar the enforcement of an arbitration award, "the award must order something that either the legislature or the courts have determined to be contrary to public policy").

The City is currently reviewing the decision and has not yet announced whether it will appeal further. Portland considers taking Frashour's reinstatement order to state Supreme Court.

Termination of police officer for Facebook post overturned - City prematurely released information to media

During the disruption following the shooting of Michael Brown in Ferguson, Missouri, a police officer in Elgin, Illinois posted two entries concerning the dispute. The first included a link to a video purporting to show Brown stealing cigarillos from a local store. Under the link to the video the officer wrote "Hmmm ...innocent victim my ass. Did society a favor." A couple of days later the officer posted a second entry. This entry contained a photo of a Missouri State Highway officer with a protester. Both individuals in the photo are making a hand gesture which the officer interpreted as a gang sign. Under the photo he wrote " This is Missouri State Highway Patrol Capt. Ron Johnson. He's also in the Chicago Tribune hugging protesters Just awesome...appears to be the enemy within."

While the officer's settings were set so his posts were visible only to his friends, one of his friends, a Sergeant in the Department, saw the initial post and reported it to superiors in the Department. Grievant was spoken to about the posting, and,while there was a dispute about the content of the conversation, it was undisputed that the officer was told that the posting was inappropriate and as a result of the conversation he removed everything following  "Hmmm...." Grievant removed the second post after he learned that what he believed to be a gang sign was a fraternity gesture.

The City conducted an investigation of the officer's Facebook posts. As part of the investigation it met with community representatives and the investigation received considerable local news coverage. That coverage included references to the Facebook posts and other details of the investigation. Following the investigation the officer's employment was terminated. That termination was grieved, and the dispute submitted to Arbitrator Aaron Wolff for resolution.

Arbitrator Wolff described the issue before him:

Discharge of Elgin police officer with 171/2 years service for two postings on his Facebook account in August 2014, allegedly made in violation of Elgin's Social Media Policy, at the height of the Ferguson, Missouri riots after a white policeman shot and killed an 18 year old black man. 

The Union (Policemen's Benevolent and Protective Association, Unit 54) raised a number of arguments, including a claim that that the City's action violated grievant's First Amendment rights.

Arbitrator Wolff found it unnecessary to reach the First Amendment issue, finding instead that the City's actions, while the investigation was pending, of providing information to the media concerning facts in dispute and copies of the Facebook postings undermined the City's claim of just cause. Arbitrator Wolff concluded:

The above record of expedited release of documents (fn30) several weeks prior to completion of the investigation of [grievant] on September 19 was a clear violation of the City's Police Department rules and regulations and is a bar to finding just cause for the discharge. ...                                      
***                                         
In light of that finding and conclusion there is no need to decide the First Amendment issue or other issues in this case. It should be noted, however, that both City staff employees and Police Department employees released confidential information to the public while the investigation was pending and, therefore, both violated the Collective Bargaining Agreement ....
____
fn30 ...An unanswered question in this case is how the media learned of the investigation in order to make any FOIA requests. ...

Nonetheless, Arbitrator Wolff did find cause for a six month suspension for grievant's failure to follow what he found was the direction to grievant to remove posts relating to the Ferguson incidents. While noting that the First Amendment issue remained unresolved, he concluded "Grievant should have followed the golden rule of obeying orders and grieving them later. At that time and manner he could find out if the postings were protected by the First Amendment."

Arbitrator Wolff's award is available here.

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

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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.

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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

Rhode Island Supreme Court finds arbitrator improperly ignored management-rights clause

Grievant was an officer for the Rhode Island Department of Corrections. The Department received information that two officers were smoking marijuana in a department vehicle while on duty. An investigation uncovered that one officer had in fact been smoking marijuana in the vehicle, and the second, the grievant, had been in the vehicle but had failed to report the incident. Grievant repeatedly denied seeing the other officer smoking until he was advised that of the existence of a witness, at which time he admitted that the other officer had been smoking marijuana on duty.  Grievant's employment was terminated for failing to report that the officer was smoking marijuana on duty and for dishonesty during the investigation.

 The dispute was pursued to arbitration and an arbitrator converted the termination to a 60 day suspension. In doing so the arbitrator noted that the cba did not contain a schedule of offenses and related discipline and he relied instead on evidence submitted concerning a prior incident of claimed dishonesty which resulted in a suspension. The arbitrator observed:

[i]f, over an extended period of time, management has responded to a particular type of offense with a range or band of discipline based on the individual circumstances and severity of a case, an arbitrator would be hard[-]pressed to go outside that defined spectrum of penalties unless the offense itself is significantly outside said spectrum.


The Department sought review of the decision, and the Superior Court vacated the award finding that the decision was based on a "manifest disregard" of the cba.  It concluded that the arbitrator had "exceeded his authority and reached an irrational result" when he ignored the management rights provision of the cba.

The Union appealed to the Rhode Island Supreme Court, which has now affirmed the lower court's decision.  The Supreme Court determined:

Here, the arbitrator did not resolve the dispute based on any provisions in the CBA. In fact, the arbitrator decided—improperly we conclude—that, because the CBA did not list offenses and corresponding penalties, he would not rely on the CBA in making his decision and instead would "look elsewhere for guidance on this question" to reach this result. Not only is the CBA pertinent to the determination of just cause in this case, the arbitrator's failure to consider its terms was a manifest disregard of the contract.

The Management Rights section of the CBA, specifically section 4.1A., provides that
"the employer shall have the exclusive right, subject to the provisions of this [CBA] and consistent with applicable laws and regulations: * * * To hire, promote, transfer, assign, and retain employees in positions within the bargaining unit, and to suspend, demote, discharge or take other disciplinary action against such employees[.]" (Emphasis added.)

The arbitrator wholly overlooked this section of the CBA in his decision.

 The Court rejected the Union's argument that the lower court had incorrectly found that the management rights clause superseded the just cause provision, observing:

 ...we do not agree with this characterization of the trial justice's determination. The trial justice concluded that the arbitrator exceeded his authority when he manifestly disregarded the management-rights provision of the CBA, not that the management-rights provision trumped the just-cause provision. We agree with her conclusion.

 Two justices "respectfully, but nonetheless forcefully," dissented. They believed that the majority was improperly substituting its judgment for that of the arbitrator and that the award was well within the arbitrator's authority to decide whether there was just cause for the discipline.

The Court's opinion in State of Rhode Island Department of Corrections v. Rhode Island Brotherhood of Corrections Officers can be found here.

Quick Hits - Law Enforcement

Officer's growing large amount of marijuana doesn't justify immediate dismissal

Grievant was employed as a police officer for the City of Buffalo. He was the subject of criminal and internal affairs investigations which revealed that he was growing large amounts of marijuana in a warehouse. He had visited the area of the warehouse on several occasions in his police vehicle. When confronted with the results of the investigations, the officer acknowledged that he had been participating in the marijuana grow operation since before he joined the Department. The Police Commissioner summarily terminated his employment. The Buffalo PBA pursued a grievance claiming that the City had failed to provide grievant with the contractual right to an informal conference and a formal hearing before terminating his employment. Arbitrator Jeffrey Selchick sustained the grievance, noting "the [contract] language brooks no exception based on the Commissioner's perception, no matter how reasonable and well founded, that the evidence of an officer's wrongdoing is overwhelming and termination is fully justified." The Arbitrator ordered the City to pay grievant for lost pay until the date of his guilty plea, less a thirty day unpaid suspension the City would have been contractually able to impose while it investigated.

 WIVB.com reports on the case, City to pay nearly $220k to dirty cop behind bars, and Arbitrator Selchick's award can be found here.

Public policy requires a determination of likelihood grievant will re-offend before reinstatement award can be upheld

An earlier post, Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations, noted an award reinstating a police officer who had been accused of using excessive force and of being less than candid with the Department. Although finding both of these allegations supported by the evidence, the Arbitrator found the delay in the Department's investigation and the failure of superior officers with knowledge of the incident to take timely action weighed against termination. Accordingly he ordered the grievant's reinstatement without back pay. The City sought to vacate the award, and the Circuit Court for Cook County granted the City's request, finding the award contrary to public policy. The Union appealed, and the Illinois Appellate Court has now reversed that decision and sent the dispute back to the arbitrator for him to make a specific finding on the likelihood that grievant would engage in similar conduct if reinstated. Clarification of the award is necessary, according to the Court, to allow it to "fully assess [the award's] public policy implications." The Court's opinion can be found here.

Sheriff's Deputy leaving official vehicle in the dark on side of highway and making false statement during investigation just cause for dismissal

Arbitrator James R. Cox has upheld the termination of a Sheriff's Deputy for parking his official vehicle at least partly in the traffic lanes, turning the lights off and then "intentionally making false and inaccurate reports of the circumstances to investigating officers." Pantagraph.com reports on the case, Ex-deputy's firing upheld by arbitrator, and links to the award of Arbitrator Cox here.

Dismissal of officer for discharging weapon while off duty upheld

The Connecticut State Board of Mediation and Arbitration has denied a grievance filed on behalf of a New Haven officer. Grievant was one of three off duty officers at a restaurant when the New Haven PD received a report of shots being fired in the area. Several spent shell were found in the area and it was determined that 5 of the 6 shells had come from grievant's weapon. The Union maintained that the evidence was insufficient to support a termination, or, alternatively, that lenience should be shown and a lengthy suspension be imposed. The panel unanimously rejected these positions noting "This incident was not a minor issue such as firing off a firearm in the woods by teenagers. This was an incident where a mature police officer fired off at least five rounds in the middle of a congested city where someone could have been wounded or killed by an off duty police officer sworn to uphold the law against such activity."

The panel's decision can be found here

Arbitrator: Homicide detective's inattention to cases provides just cause for termination

Grievant was employed as a detective in the Houston Police Department, employed in the homicide division. Upon his transfer out of that division his Lieutenant discovered that in a significant number of grievant's cases had not been updated and, on further investigation, determined that grievant had failed to follow up on a number of cases. The investigation concluded that grievant had also falsified records by claiming to have referred cases to the prosecutor or the grand jury when, in fact, he had not. 

Grievant's employment was terminated for, inter alia, inattention to duties, for untruthfulness concerning the records and reports, and for insubordination (in failing to follow instructions to bring in all files). Grievant challenged the decision and the dispute was submitted to Arbitrator Lynne Gomez for resolution. The Union acknowledged that grievant had not timely updated his files, but maintained that the City had failed to establish the other charges. It claimed that while some discipline was warranted, termination ("indefinite suspension") was unwarranted.

Arbitrator Gomez found that the City had established its charges. She rejected grievant's claim that his case load was excessive and his denial that he had been untruthful.

 Upholding the termination Arbitrator Gomez concluded:

The Union zealously represented the Grievant. However, the totality of the credible evidence presented demonstrates that just cause existed for issuance of the Indefinite Suspension, and that Chief McClelland's decision should not be disturbed. The full impact of the Grievant's misconduct may never be known, but the evidence demonstrated that it allowed murderers to remain on the streets; caused unnecessary frustration and heartache to the families of victims; and led Houston's citizens to question the Department's integrity. The Grievant's misconduct and lack of concern for victims and their families has also caused embarrassment to the Department and, specifically, to Homicide investigators, whose ability to solve cases may be hampered by diminished trust and confidence in the Department. 

The Houston Chronicle reports on the case here and links to the award of Arbitrator Gomez here.

Arbitrator overturns suspension of police officer disciplined for alleged use of excessive force

Arbitrator Michael Cavanaugh, chair of a unanimous three person panel, has sustained a grievance filed on behalf of a Seattle police officer challenging his eight day suspension for claimed use of excessive force.

The incident in question arose during an investigation of an individual believed to have been involved in a hit and run. Grievant was one of two officers who initially stopped the suspect. These two officers were then joined by a third. While inspecting the suspect's vehicle grievant observed what he believed to be a failure of the suspect to comply with the requests of the other officers. Grievant approached the suspect and using a "command voice" (a tactic he had been trained to use) ordered the suspect to "shut your mouth and just sit there." A struggle ensued as the officers attempted to handcuff the suspect, and in the course of the struggle the suspect spit on the officers. Grievant struck the suspect with his forearm and, after the suspect was on the ground, struck him with a closed fist.

A review of grievant's conduct was conducted, and a Sergeant, and acting Lieutenant and a Captain concluded that greivant's actions were reasonable and within policy. The Captain however referred the matter to the Office of Professional Accountability for a "complete and thorough review."

The OPA found grievant's use of force unjustified and unnecessary. It found that he had unnecessarily escalated the situation by injecting himself in an aggressive manner and that his use of force was "premature".

Consistent with the recommendations of the OPA, the Chief suspended grievant for a period of eight days. The Seattle Police Officers' Guild grieved and ultimately arbitrated this discipline.

Initially Arbitrator Cavanaugh addressed the nature of the dispute:

Allegations of excessive force by police officers require consideration of several significant - and often conflicting - public policy and political considerations, each of which is critically important in its own right, e.g. public safety, officer safety, the rights of individual members of the public, and the health of relationships between the SPD and the communities it serves - not to mention the City's compliance with a settlement agreement with the United Sates Department of Justice resulting from claims the SPD has too often used excessive force. 

The Arbitrator noted that just cause for the discipline could be established:

only if facts sufficient sufficient to support the discipline have been established by a preponderance of the evidence in the record, and even then, only if the process used by the City comports with accepted notions of due process and with concepts of equal treatment when considered in light of the discipline imposed on other officers for similar established offenses.

Applying these standards, Arbitrator Cavanaugh concluded that the City had failed to meet its burden. He determined that what the OPA had deemed to be improper escalation was a legitimate, if unsuccessful, attempt to obtain the suspects compliance without the use of force. He also noted that while what the Chief had described as tactical errors had been made, these errors were equally the responsibility of the other officers on the scene and there was no evidence that they had been disciplined. Finally, he concluded that the evidence failed to establish that the blows delivered by grievant were excessive. With regard to the first, he found an absence of evidence that any reasonably available lesser level of force would have been effective in ending the suspect's assault (i.e. the spitting), and with regard to the second, he found that the City had failed to effectively counter grievant's testimony that the suspect was continuing to resist while he was on the ground.

Finding a lack of just cause for the discipline, the Arbitrator ordered the City to remove the suspension from grievant's record and make him whole for lost wages.

The Seattle Times reports on the award Panel overturns suspension of SPD officer in use-of-force case and links to the award of Arbitrator Cavanaugh here.

Alcohol fueled misconduct found just cause for termination despite rehab

Arbitrator Joseph Duffy has upheld the termination of an Able Bodied Seaman in a dispute between the State of Washington and the Inland Boatmen's Union of the Pacific.

Grievant was employed by the Washington State Department of Transportation, Ferries Division. On April 5, 2013, while he was off duty, grievant drove his personal vehicle on board a ferry operated by the employer. While on board, grievant engaged in conversation with two other employees. According to these employees grievant was intoxicated and made offensive and racially charged comments to both, as well as comments about a passenger. The grievant was also alleged to have engaged in inappropriate physical contact with a female coworker. The coworker testified that grievant thrust his hands between her vest and her shirt, rubbed against her from behind, and placed his face against the back of her neck. During the employer's investigation of this incident grievant claimed he had no recollection of the events in issue, saying he was in an alcoholic blackout at the time. The employer terminated grievant's employment, and the dispute was ultimately submitted to arbitration. At the hearing the Union argued that while grievant's conduct warranted discipline, termination was too severe, and the discipline should be mitigated because of grievant's length of service and his successful participation in an alcohol treatment program.

Initially, Arbitrator Duffy noted that while grievant had been off duty at the time of the incidents, there was a clear connection between the events and grievant's employment, noting that they took place on board a ferry operated by the employer and involved coworkers and, potentially, a passenger. He then considered, and rejected, the Union's mitigation and disparate treatment arguments, observing:
 
     As witnesses at this hearing testified, many people successfully recover from alcoholism, remain sober and lead productive lives thereafter. ... The process of recovery often has a transformative effect on the individual that extends beyond simply stopping drinking. The Grievant described the positive, transformative effect that recovery has had in his life. ... Clearly, the Grievant's conduct in obtaining treatment and continuing in follow up programs is commendable.
     Had this been a case of intoxication in the workplace without the other elements, the outcome would very likely be different. Intoxication, however, does not provide an excuse for serious misconduct of the type engaged in by the Grievant. The mitigating factors of length of service, the lack of prior discipline for similar conduct and the Grievant's commitment to alcoholism treatment are outweighed by the Employer's interest in protecting the integrity and credibility of its equal employment policies and rules. 

As a result, he rejected the Union's grievance.

Arbitrator Duffy's Award can be found here.

Arbitrators improperly adding obligations to parties' contracts

Two recent decisions overturn arbitrators' awards, finding that the arbitrators acted in excess of their authority by adding obligations to the cba or by ignoring its provisions.

Definition of Gross Misconduct

In National Children's Center v. SEIU Local 500 the District Court for DC overturned the award of the Arbitrator, concluding that he had improperly ignored the terms of the cba.  The cba provided that just cause was defined as "NCC's determination that an employee does not meet this high standard [of performance, quality and care], so long as NCC does not exercise its discretion in a manner that is arbitrary, capricious or without foundation ...." NCC had also issued rules, as provided for in the cba, which defined gross misconduct as including removing, without permission, NCC property or the property of another employee.

Grievant had, at the request of an employee who had been dismissed, removed from the facility certain equipment the dismissed employee claimed belonged to her. After grievant informed NCC of what she had done, NCC terminated her employment for claimed violation of the rule.

The arbitrator concluded that grievant's conduct had violated the rule, but that her conduct did not constitute "gross misconduct." The arbitrator determined that NCC had therefore acted arbitrarily and capriciously when it terminated grievant's employment. He ordered grievant's termination reduced to a 30 day suspension.

NCC sought to set aside the award, and the District Court granted the motion. It concluded:

In this case, the arbitrator denied NCC the benefit of the bargained-for terms of its collective bargaining agreement, specifically, NCC's right to distinguish and define "gross misconduct." The arbitrator acknowledged that Section 703.6 fulfilled legitimate management purposes and that [grievant] had no reasonable excuse for her ignorance of the rule. ... Nonetheless, the arbitrator contravened the express terms of the collective bargaining agreement by finding that [grievant's] conduct "d[id] not rise to the level of gross misconduct." .... The collective bargaining agreement reserved to NCC the discretion to craft workplace rules and define "gross misconduct." See 2011 Collective Bargaining Agreement at 25. The arbitrator therefore ruled in contravention of the collective bargaining agreement by "substitut[ing] his [own] judgment or discretion for NCC's judgment or discretion." ...

 The court found that rather than interpreting the cba, the Arbitrator had substituted his judgment for "the clear management rights provided in the collective bargaining agreement."

The court therefore remanded the dispute to the arbitrator for a determination of whether NCC acted in an arbitrary and capricious manner when it fired grievant for what the rule defined as gross misconduct.

Implied terms of the cba


In County of Lebanon v. AFSCME District Council 89, Local Union 2832, the Commonwealth Court of Pennsylvania affirmed a lower court's refusal to confirm an award of Arbitrator Jane Rigler that had ordered the County to rescind the contracting out of a nursing homes' dietary department.

The contract between the County and the Union provides that "[i]n the event the [County] sells, leases, transfers or assigns any of its facilities" it is obligated to attempt to place the affected employees with the new employer and to provide thirty day notice to the Union. The Arbitrator concluded that this provision was applicable to the contracting of the dietary department, but that while the contract imposed no explicit prohibition on contracting out the work, an implied obligation of good faith and fair dealing barred the County from doing so without first  "fully and fairly dealing with the Union." The Arbitrator ordered the County to resume operation of the department and offer reemployment to all affected employees.

The County sought to set aside the award, and the Court of Common Pleas agreed. The Union appealed, and the Commonwealth Court has now affirmed.

In rejecting the Arbitrator's finding of an "implied obligation" the Court observed:

Notably, the Arbitrator ... found that the CBA "impose[d] no explicit constraint on the County's ability to contract out Cedar Haven, dietary services, work."... The Arbitrator then concluded that because the Article was silent as to the circumstances, the Article was also silent as to the County's pre-transfer obligations to the Union, and that such pre-transfer obligations should include participation by the Union in the decision-making process. Such a conclusion, however, is contrary to the plain language of Article XXXIII, which expressly lays out the County's dual pre-transfer obligations to the Union: (1) attempted placement of employees and (2) at least thirty days' notice. The arbitrator may not have liked the terms, or thought they offered the Union insufficient protection, but she was "confined to interpretation and application" of the CBA and was not free to "dispense [her] own brand of industrial justice." ... The Arbitrator, in other words, "was obliged to apply the agreement as written, without imposing additional terms that modify and limit what the parties expressed."

Concluding that the Arbitrator's decision attempted to impose duties that were not provided for in the cba, the Court affirmed the lower court's refusal to enforce the award. 

More from the Fifth Circuit on "implied findings of just cause"

The Fifth Circuit has, on several occasions, refused to confirm an arbitrator's award where it determined that the Arbitrator's factual findings constituted an "implied finding" of just cause. This line of cases is discussed here. Essentially, the Court has found that where the cba provides that a specific act of misconduct is grounds for termination, an arbitrator's finding that the grievant engaged in the conduct alleged impliedly finds just cause for termination and the arbitrator is not free to reduce the penalty.

The Court has once again addressed this issue, but in this case concludes that the cba in issue does not compel such a result.

In Steelworkers v. Delek Refining, LTD. the Court reversed the decision of a District Court and affirmed an award of Arbitrator Daniel Jennings reinstating a grievant who had been dismissed for "unacceptable performance and insubordination." Arbitrator Jennings concluded that Delik lacked just cause for the termination, but did find that grievant's actions warranted a two month suspension.

Delek sought to set aside the award, and the District Court for the Eastern District of Texas found that "The arbitrator exceeded his authority as set by an arguable construction and application of the CBA. The arbitrator made an implicit finding of just cause for discharge and improperly fashioned an alternate remedy. The District Court's decision, adopting the report and recommendation of the magistrate, can be found here.

The Union appealed, and the Fifth Circuit reversed. It determined that its prior decisions did not support the District Court's opinion. While recognizing that it has previously held that "[i]f a collective bargaining agreement defines "proper cause" to include a nonexhaustive lists of offenses, an arbitrator cannot ignore the natural consequences of his finding that a listed offense was committed, the Court found that principle inapplicable in this case. It noted :

Whereas the CBAs in Delta Queen and DuPont contemplated discharge as the only available sanction upon a finding of cause, the CBA here—like that in Albemarle—contemplated both discipline and discharge as available sanctions. ... Providing for the right to "fire and discipline for just cause," the CBA between Delek and the Union did not clearly mandate that any performance or safety issues required discharge. See Albemarle, 703 F.3d at 826 (holding that the availability of discharge, suspension, and discipline "for cause" did not "make clear that any violation of safety rules is an offense requiring discharge"). Rather, "by its terms, the CBA [between Delek and the Union] contemplate[d] situations in which a finding of `cause' could support lesser sanctions than terminations.

The Court also rejected Delek's argument that a final warning previously issued to grievant amounted to a binding last chance agreement.

Accordingly, a majority of the Court found that the Arbitrator had not exceeded his authority and his award was entitled to confirmation. The dissenting Judge believed "{Grievant's] accident-prone history and Delek's repeated attempts to discipline and warn him provide the requisite backdrop for holding that the arbitrator's finding of just cause to discipline was also an implicit finding of just cause to terminate."

Does public policy require termination of a state trooper who had a sexual encounter with a domestic violence victim?

The Supreme Court of Alaska has rejected a public policy challenge to the decision of an arbitrator upholding a grievance filed on behalf of a State Trooper dismissed for engaging in consensual sex with a domestic violence victim.

Grievant entered the academy in February of 2008. Following field training and the expiration of his probationary period he was promoted to the position of State Trooper in March of 2009. The incident in issue took place in April 2009. Grievant was called to assist another Trooper in the investigation of a claim of domestic violence. While the first Trooper interviewed the husband, Grievant spoke with the victim. According to Grievant, the victim began to flirt with him and asked for his personal cell phone number, but he refused to provide it. The husband was arrested and charged with assault. Early the next morning, while off duty, grievant texted his cell phone number to the complainant. The complainant called grievant, who then went to her home where they had consensual sex.

Subsequently complainant told her husband of her actions. He in turn told his defense attorney who told the district attorney. The state conducted an investigation of grievant's actions. Grievant's supervisor recommended that he be suspended, but the Director of State Troopers decided instead to terminate his employment.

The dismissal was grieved and submitted to arbitration. The Arbitrator concluded that that the State had not engaged in progressive discipline, that previous instances of sexual misconduct had not resulted in termination, and that if the State intended to apply a zero tolerance policy it needed to inform the troopers. While finding the grievant had engaged in unprofessional conduct and had shown poor judgment she reduced the dismissal to a suspension and ordered the grievant's reinstatement.

While the arbitration was pending, the State also sought, through the State's Police Standards Council, revocation of grievant's basic police certificate. Possession of a certificate is a requirement for every state trooper. An administrative law judge found revocation warranted, and the Police Standards Council voted to revoke grievant's certificate.

The State filed a complaint, seeking to set aside the arbitrator's award as being the result of gross error, and because, the State claimed, it was contrary to public policy. The Superior Court upheld the arbitrator's award in part. It rejected the State's public policy argument, but concluded that the revocation of grievant's certificate precluded his reinstatement. Accordingly, it upheld the award of back pay from the time of termination to the date of the revocation of the certificate. It declined to uphold the ordered reinstatement.

The State appealed, and the Alaska Supreme Court has affirmed the decision of the superior court. In rejecting the State's arguments, the Court observed:

the correct question is not whether the Trooper-Grievant's conduct violated public policy; rather, it is whether the arbitration award of reinstatement with back pay itself violates an "explicit, well-defined, and dominant public policy." Although we cannot disagree with the State that the Trooper-Grievant's conduct was censurable, we also cannot overturn an arbitrator's decision if that decision does not violate an explicit, well-defined, and dominant public policy. We therefore must affirm the superior court's decision to uphold the arbitrator's award in part.

In reaching its decision the Court noted several cases from other jurisdictions rejecting efforts to set aside arbitrators' awards reinstating law enforcement officers who had consensual sex with a witness or informant. (Monroe County Sheriff v. Fraternal Order of Police;  Bureau of Maine State Police v. Pratt;  City of Lincoln Park v. Lincoln Park Police Officers Ass'n)

Because it agreed with the lower court that grievant could not be reinstated without a police certificate, however, it also affirmed the lower court's refusal to enforce that portion of the award ordering grievant's reinstatement.

The Court's decision, State v. Public Safety Employees Association, can be found here.

Reinstatement of police officer who used "unreasonable and unnecessary" force not violative of public policy

Grievant was employed as a police officer for the City of Owasso, OK. His employment was terminated after the City accused him of engaging in excessive force in violation of Department policies in connection with the arrest and transportation of an individual. After a hearing, Arbitrator Edward Valverde concluded that the evidence established that while the officer had used "unreasonable and unnecessary force," the absence of evidence that the subject was injured precluded a finding that the force was excessive. In an award discussed here, Arbitrator Valverde found the discipline excessive and overturned the termination, reducing the discipline to a written warning.

The City sought to vacate the award on the grounds, inter alia, that reinstatement of an officer found to have engaged in such conduct violated the public policy of Oklahoma. The trial court agreed, concluding that grievant's conduct showed that his continued employment "poses a special risk of injury, physical and psychological, to citizens, and, if he is allowed reinstatement, the department will be faced with explaining why Owasso allows abusive conduct by its officers, which is against the law."

The Oklahoma Court of Civil Appeals has now reversed that decision, effectively enforcing the arbitrator's award. Initially, the Court observed that any decision of an arbitrator adverse to the position of the City might have some "fallout", but that it was "not the function of the court to protect the City from the consequences of the bargained for arbitration process."  The Court further concluded:

The parties clearly bargained for an arbitrator's interpretation of the CBA, and so long as the arbitrator remained true to the essence of the agreement, his decision should not be disturbed. More specifically, the parties bargained for the arbitrator's construction of the term "just cause" as used in the CBA, and, although reasonable people might differ on the appropriate discipline to be imposed, the CBA placed no limitation on the arbitrator's authority to craft a remedy for [grievant's] use of unreasonable and unnecessary force different from the decision of the City to terminate his employment.

Contrary to the lower court, and the dissenting judge, the Court of Civil Appeals found nothing in the criminal statues defining assault, or the statutory definition of excessive force, that would serve as an impediment to reinstatement

The Tulsa World reports on the decision, and links to the Court's opinion, here.

"Brutal" hazing didn't provide just cause for termination when others involved weren't disciplined

The State of Iowa terminated the employment of a State Trooper following receipt of a report of hazing during police academy basic training class four years earlier.

Grievant was part of an Academy basic training class between June and October of 2008. As squad leader, grievant was assigned to assist another recruit who was having difficulties with the training. Grievant did not have a good relationship with the other recruit and believed he was unsuited for the training. He also believed the Academy would not dismiss the other recruit because his father was a trooper. Grievant engaged in what the other officer described as a pattern of threats and harassment. Grievant admitted he was attempting to induce the officer to quit. Grievant also engaged in "bonding' the other recruit. This involved handcuffing him to his bunk, pulling down his pants and rubbing Bond powder onto his "butt cheeks." While he did this, grievant called over other recruits to observe. It was undisputed that grievant was advised to stop verbally abusing the other recruit and that he did so, but there was conflicting testimony about whether the Academy leaders were aware of the physical interaction. Both individuals ultimately graduated.

 Approximately four years later, grievant met with a captain of the state police to report what had taken place during basic training. The captain initiated an investigation of what he described as a "sexual assault." As a result of that investigation, the employment of grievant and a second student who was deemed to have participated in the "bonding" was terminated. Other individuals who had observed the incident were questioned but not disciplined. The union pursued the dispute to arbitration, arguing that grievant had  been disciplined  at the time of the incident and that further discipline constituted double jeopardy. They also argued that grievant had been "set up" by Academy staff to cause the recruit to resign. The union claimed that, in any case, the discharge was not for just cause since the investigation took too long, the incident in issue was isolated, and that there was no showing of any impact of the incident on grievant's ability to perform his job.

Arbitrator Harvey Nathan rejected most of these contentions. He found no double jeopardy, noting that the warning grievant received while at the Academy "was directed to harassment generally, and specifically to the audacious verbal abuse...." He also found no basis to conclude that the Academy staff bore any responsibility for grievant's "loss of judgment" on the day in issue. However hid did conclude that if  the Academy had  more closely monitored activities in the barracks the  incident could potentially have been avoided.  Moreover, had the incident been reported promptly corrective action could have been taken immediately. Given the way the issue came to light, however, "there was little that could be done other than terminate the grievant. It was not the length of time of the investigation that prejudiced [grievant]. It was the Academy's failure to be on top of misbehavior in the barracks."

 While noting "there can be no minimizing of the brutal attack on a weak and innocent bunkmate," the Arbitrator ordered the Department to reinstate grievant with back pay from the date of the award.  Arbitrator Nathan concluded:

     While the grievant was the instigator of the assault, it would not have happened as it did if other recruits did not cooperate. Had the staff learned of what happened, either from [victim] or others, an investigation could have been opened as it was almost four years later. While obviously not as severe as forcibly stripping [victim] and pouring a substance on a private part of his body, standing there and cheering on the perpetrators was aiding and abetting the assault. There were many more people involved in this incident than just [grievant]. Someone there should questioned [sic] what was being done. The failure to intervene warranted discipline of several other recruits. Surely, the Academy needs to teach recruits that Troopers do not simply turn away when they see a colleague do something intolerable, let alone join forces with the miscreant after the hazing began.
     The defect in the Department's case was its failure to explore the incident after the meeting with [grievant] with the thoroughness that occurred in 2012. And with regard to that investigation, the Department should have disciplined all of the recruits, now Troopers, who directly or indirectly, were involved in the bonding incident. While this would have been difficult, once it decided to terminate [grievant] it was a violation of the "just cause" principle to ignore the several others who were involved.

Arbitrator Nathan's award (13-GA-0208 - State of Iowa (Dept. of Public Safety 10/5/2013) can be found here.

Note: According to a report in the Des Moines Register, here, the termination of the second student allegedly involved in the incident has been overturned by Arbitrator Clair Brooks.