A sleeping ferry engineer and a state trooper without a weapon

Two recent cases address issues created when an initial disciplinary action has not been fully thought through or the basis for it is not clearly articulated.

Discipline in excess of settlement agreement cannot be enforced 

Timothy Wood was employed as a Chief Marine Engineer aboard the Staten Island Ferries. During a shift he was observed sleeping during docking, in violation of docking procedures. No formal disciplinary was taken but Wood entered into a settlement agreement admitting that he had been sleeping and agreeing to a thirty day suspension. The agreement further provided that it was "executed in consideration of the Department's resolution of the aforementioned charge without the furtherance of disciplinary action in this matter."
Upon his return to work, Wood was advised that he would no longer be allowed to work in his recently bid job but would be assigned to non-passenger service dock work. He was thereafter prohibited from bidding on jobs in his title but was limited to bidding on Marine Engineer positions. His union, Marine Engineers Beneficial Association, pursued a grievance on his behalf asserting that these restrictions were contrary to the bidding procedures of the cba. Arbitrator E. David Hyland sustained the grievance, finding that the restrictions placed on Wood after his return to work were "directly related to the same misconduct/incompetence alleged as part of the parties disciplinary settlement" and were contrary to grievant's contractual rights.
The City sought to vacate the award, referencing the 2003 Staten Island ferry crash and arguing that it was contrary to public policy to allow Wood to be restored to his Chief Marine Engineer position and threatened public safety. It  also claimed that restoring grievant to his CME position exposed the Captain to potential liability under the Seaman's Manslaughter Statute.
The Court rejected this claim, noting:

The court does not find that the award, by its own terms, violates the Seaman's Manslaughter Statute, since it does not direct respondents to engage in misconduct or negligence, nor does it require [the Captain] or any other DOT employee to "knowingly and willfully" cause "fraud, neglect, connivance, misconduct, or violation of law." The award merely finds that respondents violated the collective bargaining agreement by imposing additional punishment after the settlement agreement had been entered into.

While recognizing the public safety concerns, the Court found that the City did not find that grievant's actions warranted these restrictions when it first entered into the settlement agreement and that it had failed to articulate any act since the settlement which would lead to any public safety concern. 

Accordingly, the Court confirmed the arbitrator's award. Marine Engineers' Beneficial Association v. City of New York

Update: The Appellate Division affirmed, finding no violation of public policy. Matter of Marine Engineers' Beneficial Assn. v. City of New York

Court upholds award, finding absence of evidence to support the charges

A Pennsylvania State Trooper (grievant) became romantically involved with another trooper. The relationship ended in 2014, and the other trooper filed a number of complaints alleging that grievant had engaged in harassing behavior. These complaints were investigated  and grievant's captain and the Department's EEO office found them unfounded. In December of 2015, the other trooper filed with the court for a temporary Protection From Abuse (PFA) order. A temporary order, later converted to a permanent order was issued, which among other restrictions prohibitrd grievant from carrying any firearm until May 2018. Grievant was placed on restricted duty for the duration of the time the PFA was in effect. In October of 2016 the Department issued a Notice of Penalty dismissing grievant, citing violation of two departmental regulations, Unbecoming Conduct and Conformance with Laws. The notice did not list as a reason for the discipline an assertion that  grievant was unable to perform an essential job function because he could not carry a weapon. A grievance over the termination was submitted to expedited arbitration. The arbitrator issued an Award and Remedy that proved in full:

The grievance is sustained, primarily because the Department's decision to discharge is based on the underlying incidents of harassing conduct alleged in the PFA that were the subject of the first two internal investigations and found `not sustained' and that were neither proven at the arbitration hearing nor considered when the Disciplinary Action Report was issued. Accordingly, the Department did not have just cause to discharge [Grievant].As the remedy, the Department is directed to reinstate [Grievant] to his former position (i.e., restricted duty status during the time the PFA remains in effect) with no loss of seniority. The Department is further directed to make [Grievant] whole for any losses incurred as a result of his discharge, including but not limited to back pay and benefits, less any interim earnings. The Arbitrator shall retain jurisdiction of the case for the sole purpose of resolving any disputes over the implementation of the remedy.

The Department sought to vacate the award. It claimed that the arbitrator's award was in excess of his powers because he reinstated grievant to restricted-duty status even though he was prohibited from carrying a gun. It asserted that the cba only provided for such status when an internal investigation is pending and prior to a Notice of Disciplinary Proceedings. A split Commonwealth  Court rejected the Department's arguments. Noting the very restrictive scope review of such awards, the Court concluded:

Because the NDP did not discharge Grievant because of his inability to carry a firearm or carry out essential job functions, the limited issue before the arbitrator was whether the aforementioned reasons demonstrate "just cause" for discharge, and "[i]f not[,] what shall the remedy be?" (R.R. at 7a-8a.) Because the award does not require the PSP to perform an illegal act or an act that it could not do voluntarily, the arbitrator did not exceed his authority. Moreover, because the parties stipulated that the arbitrator had jurisdiction to decide whether there was just cause to discharge Grievant and to decide the remedy, the arbitrator clearly acted within his jurisdiction.

The Court also found no error in the arbitrator's conclusion that the Department's failure to present first hand evidence of the claimed violations, (relying instead on the PFA)  was insufficient to establish just cause. Pennsylvania State Police v. Pennsylvania State Troopers Association.

[The issue of the impact of a law enforcement officer's loss of the ability to cary a weapon is also addressed at Police officer who lost license to carry weapon properly terminated and Award reinstating police officer without License to Carry weapon confirmed]

Court upholds reinstatement of police office denied license to carry a weapon.

The Massachusetts Appeals Court has affirmed the enforcement of the award of Arbitrator Roberta Golick reinstating a police officer terminated after the Police Chief for the City of Worcester, Mass. refused to issue him a license to carry a weapon. Grievant had initially been terminated following an altercation at his home in which he pointed his weapon at three teenagers. While the incident was being investigated, the Chief purported to suspend grievant's license to carry. Ultimately the Chief denied grievant a license, deeming him an "unsuitable person."

 Arbitrator Richard Higgins sustained a grievance over the termination and ordered the grievant's reinstatement. After that award, the Chief again terminated the employment of grievant, in part because he did not possess a license to carry. The Union again grieved, and Arbitrator Golick ordered his reinstatement. These two awards are discussed here.

The city sought to set aside Arbitrator Golick's award, but their efforts were rejected by the superior court. The Appeals Court has now affirmed.

The Court summarized the award of Arbitrator Golick as follows:

The arbitrator concluded that `[j]ust cause for dismissal is not established by the unadorned fact that a chief exercises his discretion to refuse to issue an employee a firearm,' because, if that were all that was needed to dismiss a police officer, the officer's `contractual right not to be discharged except for just cause is meaningless.' The arbitrator further concluded that the police chief `may be free to exercise his claimed authority to refuse to permit Rawlston to carry a weapon. But in the realm of just cause, which is the contractual standard for dismissal, the City's reliance on an alleged `disqualification' that the Chief himself decided to impose so as to prevent Rawlston from reinstatement was capricious and does not meet the test of contractual fairness.' 

Like the Superior Court, the Appeals Court found no public policy issue warranting setting the award aside. As it had in connection with the appeal of the initial decision of Arbitrator Higgins (O'Brien v. New England Police Benevolent Assn., Local 911), the Court found "the factual and legal underpinnings necessary to the application of the public policy exception are lacking."

The Court's opinion in City of Worcester v. New England Police Benevolent Assn. Local 911 can be found here.

Award reinstating police officer without License to Carry weapon confirmed

As noted in an earlier post, Arbitrator Phillip Dunn upheld the termination of a police officer after the Chief revoked his license to carry a weapon. Police officer who lost license to carry weapon properly terminated.  In contrast, according to a report in the Worcester Telegram, the Massachusetts Superior Court  confirmed an award of Arbitrator Roberta Golick reinstating an officer who had similarly been denied renewal of a license to carry. Ruling backs former Worcester officer accused of pointing gun at teens.

The officer had initially been terminated for allegedly pointing a handgun at three teenagers in his neighborhood while off duty. During the investigation of that incident his license to carry expired and the Police Chief declined to renew it. Arbitrator Richard Higgins overturned that termination (here), and the Massachusetts Appeals Court rejected the City's claim that that award violated public policy. O'Brien v. New England Police Benevolent Association, Local 911. 

After Arbitrator Higgins' award, the City again terminated grievant's employment, claiming in part that his lack of a license to carry disqualified him. It was this decision that Arbitrator Golick overturned. In her decision Arbitrator Golick observed:

... the Chief is not swayed by and disagrees with the facts found by Arbitrator Higgins relative to [grievant's] conduct in the Tory Fort Lane incident; the Chief stated publicly after the Higgins award that the Department would do everything it could do to prevent [grievant] from returning. How did it do that? First, it challenged the Higgins award in Court. Second, it launched a collateral attack on the officer’s qualifications to serve as a police officer by cutting off any legal route for him to be able to carry a gun. Ensuring that [grievant] could not secure a License to Carry was not merely an attempted end-run around Higgins’s directive to reinstate [rievant] to his position; it was and is an attempted end-run around the contract’s just cause provision. If all it takes for a department to permanently rid itself of an unwanted officer is to revoke the officer’s Chapter 140 §131 License to Carry a firearm and withdraw permission to carry a weapon under Chapter 41 § 98, then an officer’s contractual right not to be discharged except for just cause is meaningless. Just cause for dismissal is not established by the unadorned fact that a chief exercises his discretion to refuse to issue an employee a firearm.9 What is essentially the Department’s dissatisfaction with Arbitrator Higgins’s findings and ruling does not provide just cause under the collective bargaining agreement to discharge [grievant]. 

The City sought unsuccessfully to vacate Arbitrator Golick's award. According to the report, the Superior Court  concluded:

[T]he arbitrator found that the city did not have just cause to terminate [the officer] because he did not have a license to carry a firearm ...The arbitrator noted that the city had not shown that possession of a license to carry a firearm was a necessary job requirement for a Worcester police officer. The arbitrator further found that even if possession of a license to carry a firearm was a requirement of the job, the officer could waive such a requirement, and he had done so in the past.

The Appeals Court affirmed that decision (here), rejecting the City's claim that the award was contrary to public policy

The Daily Worcesteria links to Arbitrator Golick's award here.

[This post has been updated and revised]