Double jeopardy, public policy and a filing on the Seattle consent decree

Dismissal overturned because of suspension for same offense

Arbitrator Michael Paolucci sustained, in substantial part, a grievance filed on behalf of a Euclid, Ohio police officer. The City of Euclid, Ohio and Fraternal Order of Police Lodge 18.

The grievances involved three separate incidents, all arising from grievant's off duty conduct and included allegations of domestic violence, violation of a protective order  and theft or failure to pay for certain appliances grievant allegedly took from a house he was renting. Arbitrator Paolucci found that two of the three incidents was either unproven or termination too severe for the alleged offenses. On the third, the arbitrator found that grievant's plea of guilty to a charge of persistent disorderly conduct made serious discipline "fair." However, because the Chief had already suspended grievant for 15 days, the limit of the Chief's disciplinary authority, the subsequent action of the Mayor terminating grievant was barred by principles of double jeopardy. He observed:

If the Chief believed that discharge was appropriate, it was incumbent on him to not issue discipline and to make the recommendation to preserve the issue. He did not do that here. He issued a very specific discipline that was directly responsive to the alleged offense. He issued discipline that was the maximum permitted under his authority, and he did so even though he believed harsher discipline was justified. Despite this belief, he acted with finality. This was not discipline pending or conditioned on further investigation. It was the maximum allowed, it was in response to allegations, it was after a full and complete investigation, and it was with the full authority allowed. Based on all the foregoing, it must be found that the City's administrative method exposed the Grievant to double jeopardy. He was disciplined first for fifteen (15) days, and was then also discharged.

It is fair to recognize that employees are often “suspended pending discharge” or “suspended pending investigation.” That is not what occurred here. As noted, the discipline was formalized, imposed and completed; and only then was it referred to the Mayor for additional consideration. If the Chief thought discharge was appropriate, then a full and final discipline should not have been issued. Based on the record submitted here, the procedure was improper and violated just cause standards.

Arbitrator Paolucci upheld the fifteen day suspension originally imposed by the Chief.

Minnesota Supreme Court rejects public policy challenge to reinstatement of police officer

Reversing the Court of Appeals, the MN Supreme Court has found no public policy basis for vacating an arbitrator's award reinstating an officer who had been dismissed for allegedly failing to report his use of force. City of Richfield v. Law Enforcement Labor Services, Inc.   The Court held:

The City argues that the court of appeals correctly held that enforcing this arbitration award violates "public polic[ies] in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force" and "against police officers using excessive force" and would interfere with the City's "legal obligation" to enforce conduct standards for its police officers. City of Richfield, 910 N.W.2d at 477. The Union argues that the court of appeals focused unduly on Kinsey's conduct rather than on enforcement of the arbitration award, and reinstatement of Kinsey does not violate any public policy. We agree with the Union.
Assuming without deciding that a public-policy exception permits courts to vacate arbitration awards, the facts here do not support applying the exception. It is difficult to conclude that the arbitration award violates public policy given the finding that excessive force was not used. Kinsey's failure to report does not provide a basis for applying the public-policy exception because the arbitrator found that, even though Kinsey should have reported the incident, the City's policy was not clear on that question. The factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award on the basis of a rarely used public-policy exception.

The Court further held that the award did not undermine the Department's authority to enforce its policies, noting that the Arbitrator did uphold discipline (short of termination) because of the officer's failure to  report the incident. 

The Court of Appeals decision is discussed here. 

Community Police Commission response to Seattle OSC

Last week's post addressed the response filed by the Department of Justice to a Judge's inquiry whether Seattle was in compliance with a  consent decree concerning police use of force. Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline. The City's Community Police Commission has now filed its own response. It challenges the analysis of DOJ and is critical of what it describes as the heightened standard of review by arbitrators set forth in the City's most recent cba with the police union. It requests the Court "to convey that the Consent Decree will not be resolved until the City establishes that the accountability system reforms have in fact been secured."

The CPC's position is summarized in an article Citizen panel accuses Seattle police of backtracking on reforms, violating federal agreement, and the submission to the Court is available here.

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.

Another unsuccessful public policy challenge to an arbitrator's award

The City of Cleveland terminated the employment of a police officer for her essentially undisputed actions of stabbing a romantic partner.

 Grievant had been dating and, for a time, living with the partner. He had a criminal history of convictions for a number of offenses including drug possession, sexual battery, attempted kidnapping and  gross sexual imposition. On March 12, 2012 the two engaged in an argument and grievant, while intoxicated, stabbed the partner several times and fled the scene. She was found in her vehicle with a cord that was suspended from the ceiling of the car wrapped around her neck. Grievant was arrested and charged with felonious assault. She was subsequently charged with a reduced offense and sentenced to county jail for six months. The sentence was suspended but her employment was terminated.

In an award (discussed here) Arbitrator Paul Gerhart ordered her reinstatement. He concluded that while grievant had engaged in "particularly egregious" conduct the temination was not for just cause. Arbitrator Gerhart relied on evidence that other officers who had engaged in arguably similar behavior had not been terminated and found that this evidence of disparate treatment undermined the City's case. He noted also a number of mitigating factors and reinstated her (without back pay) subject to her refraining from alcohol  and her compliance with any requirements imposed by the City's Employee Assistance Program.

The City sought to set aside the award but the trial court refused to do so. The Court of Appeals of Ohio has now affirmed that decision and upheld the award. City of Cleveland v. Cleveland Police Patrolmen's Association. The City claimed that the award was contrary to public policy, a claim that the Court quickly rejected. The Court observed that the City had failed to state a well defined public policy argument and noted:

The arbitrator acted within his discretion, and the City did not effectively argue how his decision is in conflict with public policy. The City only argues that the public should be able to have the confidence in police officers and that officers should hold themselves to the highest ethical standard. However, there are many cases where police officers have not held themselves to such a high standard, and yet they were not terminated from their jobs. 

The Court also rejected the City's claims that the arbitrator improperly required it to use progressive discipline and did not issue a "final" award because he essentially deferred to the City's Employee Assistance Program to decide what, if any, continuing counseling was appropriate.

February Quick Hits

USM followed contract in layoff of faculty

Arbitrator Mark Irvings largely rejected a grievance filed by the Associated Faculties of the Universities of Maine  challenging the University's "retrenchment" (layoff) of faculty at USM resulting from economic pressures. While the Union challenged the need for layoffs, and offered its own analysis of the financial health of the system, Arbitrator Mark Irvings concluded that the University acted "for bona fide financial or program reasons" within the meaning of the cba. 

The Portland Press Herald reports on the decision USM followed contract when it laid off faculty members in 2014, arbitrator rules and links to a redacted copy of the award here. 

Court: Arbitrator did not ignore last chance agreement, upholds award

The US District Court for the Southern District has refused to overturn an award of Arbitrator Robert Simmelkjaer.  UNITE HERE Local 100 v. Westchester Hills Golf Club, Inc. Arbitrator Simmelkjaer sustained the grievance filed behalf of a bartender who had been dismissed. In 2010 Arbitrator Susan Mackenzie reinstated grievant following his termination for insubordination but imposed a last chance condition. Separately, the Golf Club entered into a last chance agreement with grievant in settlement of a dispute about a proposed termination in 201. In 2013 grievant was working as a bartender at a bereavement lunch. A participant complained about his behavior and the Club again terminated his employment. Arbitrator Simmelkjaer found that the Club had not established that grievant engaged in the conduct alleged. Additionally, he concluded that the last chance agreement entered into in 2011 was unenforceable because the Union was not a party to the agreement. He rejected the Club's claim that, since grievant was a shop steward, further participation by the Union was unnecessary. The Court concluded that the Arbitrator acted within the scope of his authority and his award was entitled to confirmation. (A similar issue is addressed in Last chance agreement doesn't bar arbitration when union is not a party)

City to appeal order confirming award reinstating police officer

Arbitrator Mark Reed sustained a grievance filed on behalf of a Guthrie, Oklahoma police officer dismissed for his actions in arresting his wife's ex-husband. Arbitrator Reed's award can be found here. The Arbitrator concluded that grievant's conduct warranted severe discipline but that an unfair investigation and grievant's length of service supported mitigation of the penalty. The City unsuccessfully sought to set aside the award, and it has now indicated its intent to appeal that decision. City Council appeals judge ruling that former Guthrie police officer should be reinstated.

Police discipline 

A column in the San Antonio Express News reviews the arbitration award that reinstated an officer involved in the fatal shooting of his girlfriend's ex-boyfriend and asserts Union undermines police chief in appeal process. The article links to the award of Arbitrator LeRoy Bartman here.

The issue of police discipline is the subject of news articles in Texas (Police disciplinary process questioned by McManus), Massachusetts (Discipline for Boston police officers frequently overturned Arbitrators rule in favor of officers three out of four times),  New York (Schenectady to appeal police discipline case to state's highest court) and California (How San Jose cop fired for combative Black Lives Matter tweets got his job back).

Court confirms award upholding termination of oboist

The District Court for the Western District of New York has rejected an effort to overturn an award of Arbitrator Robert Rabin upholding a termination. Grievant was an oboist with the Boston Philharmonic. The Court rejected the unsuccessful grievant's challenges to the arbitrator's evidentiary rulings, and declined the grievant's invitation to find a violation of public policy in the award. The Court denied grievant's claim that an award upholding a termination was contrary to public policy "because his profession as an oboist is extremely limited in terms of job opportunities."  The court's decision in Roy v. Buffalo Philharmonic Society, Inc. can be found here.

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.

Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Grievant was employed as a bus driver with the Manhattan and Bronx Surface Transit Operating Authority. He worked as a bus operator for four hours per day, and he was also a union official and worked eight hours per day (on Transit Authority paid release time) on labor-management duties. In December of 2012 a bus dispatcher filed a complaint alleging that grievant had repeatedly sexually harassed her. In January 2013, at the request of the Union (Transport Workers Union of America, Local 100),  grievant was placed on union paid release time.

In April 2013 the Authority's EEO office issued a report finding reasonable cause to believe that grievant had engaged in conduct in violation of the Authority's sexual harassment policy. The TA presented disciplinary charges against grievant, but the Union disputed the Authority's power to maintain disciplinary action against an employee on union-paid release time. The Union claimed that placement on union paid release time created a "safe haven" protecting an employee from discipline.  The issue was submitted to an arbitrator  who upheld the Union's position. The Arbitrator concluded that the cba contained specific directives governing prohibited activities for employees on release time.

The Union filed an action seeking to confirm the award and the NY Supreme Court (the trial court) confirmed the award. The Authority appealed, and the Appellate Division has now reversed.

Initially the Court acknowledged  that:

in considering the issue before us, we must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.

Answering the question in the affirmative, the Court held that assuming the arbitrator's award was contractually correct, the decision itself was contrary to public policy. While noting the limited scope of review of arbitrators awards, and the substantial deference they are owed, the Court determined:

...this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections. Knowing that complaints against employees like [grievant] will be impeded by CBA protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority's ability to promptly remedy such behavior. It is also imperative that employers have the unfettered ability to discipline employees such as [grievant] in order to both punish the offender and to deter other employees from engaging in such behavior.

The Court noted that it was not substituting its judgment for that of the arbitrator on the contractual question, nor was it imposing a remedy it felt was appropriate. Rather, "we simply vacate the award as violative of public policy."

The Court's decision Matter of Phillips v. Manhattan & Bronx Surface TR. Operating Auth. can be found here.

Connecticut Supreme Court clarifies use of public policy in challenges to arbitration awards

Since first recognizing a public policy exception to the general rule of deference to arbitrator's awards, the Connecticut Supreme Court has issued six decisions in which an employer has sought to vacate, on public policy grounds, an arbitrator's award reinstating an employee. The Court summarized those decisions as follows:

 In one half of those cases, we held that reinstatement of the terminated employee violated a clear public policy of the state. See State v. AFSCME, Council 4, Local 391, supra, 309 Conn. 521 (correction officer engaged in persistent sexual harassment of coworkers); Groton v. United Steelworkers of America, 254 Conn. 35, 36–37, 757 A.2d 501 (2000) (weighmaster at municipal landfill pleaded nolo contendere to embezzlement charge); State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 468–69, 747 A.2d 480 (2000) (correction officer placed obscene, racist telephone call to state senator). In the other three cases, we upheld the decision of the arbitrator reinstating the terminated employee. See Stratford v. AFSCME, Council 15, Local 407, supra, 315 Conn. 50–52 (police officer misrepresented history of alcohol use during official medical exam); State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 129–31 (Department of Mental Retardation employee shoved agitated client into chair); South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 802–805, 770 A.2d 14 (2001) (police officer deemed unfit for duty after drawing gun on trespassers playing basketball in school gym). 

In its unanimous decision in Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199 the Court has, in an effort "to assure consistent, principled decisions," clarified the factors a reviewing court should consider when evaluating such a claim. The case arose from the arbitration of a grievance filed by an employee of a nursing facility. The grievant had delayed in reporting her suspicion that a resident had been abused. The arbitrator concluded that while the delay warranted some discipline, termination was too severe. The employer sought to vacate the award, but the Superior Court denied the request. The nursing home appealed, and the Appellate Court (in an opinion discussed here) vacated the arbitrator's award. The Appellate Court determined that the award violated the public policy calling for protection of nursing home residents. The Supreme Court has now used this case to clarify the factors to be used by courts in reviewing awards in the face of a public policy challenge, and to assist arbitrators in the types of factual findings they may make to assist a reviewing court in considering such a challenge. The Court synthesized a four pronged test for review:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible

Applying these factors to the case before it, the Court first found no serious challenge to the applicable public policy of protecting vulnerable nursing home residents. Concerning the second issue, the Court observed that it is a "rare case" in which the Court will vacate on public policy grounds an award reinstating an employee in the private sector. It recognized however, a limited exception when reinstatement of a grievant by itself would pose a serious threat to public safety (e.g. reinstatement of a pilot for operating an aircraft while drunk). The Court noted that residential nursing home facilities pose "something of an exceptional case" because of the state's interest in protecting vulnerable residents. It found this factor neutral with respect to vacating the award in this case. Turning to the third and fourth factors, the Court found an insufficient basis for overturning the award. It noted that, as found by the arbitrator, grievant had in fact ultimately reported her suspicions, and there was no evidence of a likelihood of recidivism. Finding that the Appellate Court had improperly substituted its judgment for that of the arbitrator, the Court reversed and remanded the case for consideration of a second issue not previously addressed by the Appellate Court.

Police officers, "untruthfulness" and public policy

A police officer's claimed "untruthfulness" and the dictates of public policy have been the subject of previous posts here and here. (Discipline for untruthfulness generally is discussed here, here and here.)

The Supreme Court of Connecticut has now addressed this issue. In Town of Stratford v AFSCME Council 15, Local 407 the Court reversed the decision of the Appellate Court and essentially confirmed an arbitration award reinstating a police officer found to have been deceptive during an independent medical exam concerning his fitness to work.

Grievant had been employed by the City for several years. When he was initially hired the City was aware that he had latent epilepsy. It required him to complete a probationary period free from seizures, which he did successfully. In June of 2009 grievant suffered a seizure while driving a police vehicle, striking two parked cars. His personal physician cleared him to return to work, but the City sent him to an independent neurologist for an independent medical evaluation. That ime cleared him to return to work, but in reviewing the records, the City became aware that grievant had failed to inform the examiner that he had suffered two seizures, in 2005 and 2008, and further failed to disclose that he had been abusing alcohol. Presented with this information, the independent examiner concluded that, while he was unsure if grievant could be trusted to avoid activities (primarily alcohol) that might increase his susceptibility to seizures, he presented no greater risk than he had at the time of his initial hire. The City however charged grievant with lying during the ime, and terminated his employment.

An arbitration panel overturned the termination. It concluded that termination was excessive, but did find grievant's misconduct serious and denied any back pay. The City sought to set aside the award as contrary to public policy, but the trial court refused to do so. On appeal, the Appellate Court reversed (in an opinion discussed here) finding:

    the union concedes that [grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [grievant] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.


The Union appealed, and the Supreme Court reversed. Initially, it concluded that there was a public policy "against the employment of law enforcement personnel who have engaged in intentional dishonesty that directly pertains to their qualification and ability to perform official duties." It noted, however, that the next question was whether public policy required termination of grievant's employment. Concluding that it did not, the Court observed:

[Grievant] did not lie under oath and his dishonesty was not disruptive or repeated; he was not dishonest before his fellow police officers or while performing his official duties. He was not warned about the repercussions of his misconduct so he was not incorrigible, and the punishment that he received was severe.

The Court concluded that requiring termination under the facts of this case "would unnecessarily expand "the stringent and narrow confines of [the] exception' to confirming an arbitration award and 'swallow the rule' granting deference to arbitration awards.

The dissent would have upheld the decision vacating the award, observing:

[Grievant's] violation of that trust and confidence, by lying in connection with the independent medical examination, was indeed ‘‘very serious,’’ as the panel observed, because those lies bore directly on his ability to return to work and to safely  perform his duties as a police officer. Short of a violation of the criminal law, it is hard to conceive of misconduct by a police officer that is more serious. Simply stated, when {Grievant] placed his own perceived self-interest over the safety of the community by lying about his fitness to serve, he demonstrated that he is not fit to serve.

Medical marijuana, arbitration and the courts

In two recent decisions courts have vacated arbitrators' awards reinstating employees dismissed for use of marijuana. Both cases discuss the impact of medical marijuana legislation.

In Freightliner v. Teamsters Local 305 the U.S. District Court for Oregon granted the Company's request to vacate the award of Arbitrator Carlton Snow based primarily on the Arbitrator's reliance on the Oregon Medical Marijuana Act in contravention of what the Court believed to be the governing language of the cba.

Grievant had been employed as a material handler. After his involvement in a forklift accident he was required to submit to a drug test. On the day he took the drug test, grievant informed the Company that he had a prescription for medical marijuana that he had obtained a couple of months earlier. The results of the drug test showed that grievant was "under the influence" as defined in the Company's drug policy, which was expressly incorporated into the cba. The policy provided that being "under the influence" was cause for suspension or termination. As a result of the positive result, and his claimed failure to comply with the Company's notification requirement for prescription drugs, grievant's employment was terminated.

The termination was grieved and submitted to arbitration before Arbitrator Snow. Arbitrator Snow found that grievant was in fact under the influence as defined in the policy, but found further that there was no evidence that his work performance was impaired. According to the Court, the Arbitrator concluded that "in light of [Oregon's Medical Marijuana Act] an employer cannot 'discipline an employee (1) who ingests marijuana pursuant to a valid prescription, (2) does so on his or her own time, and (3) reports to work in an unimpaired state of being." Accordingly the Arbitrator upheld the grievance and ordered the grievant's reinstatement. Freightliner sought to vacate the award on the basis that the Arbitrator had exceeded his authority by relying on the Medical Marijuana Act, and that the award violated public policy.

In ruling on cross motions, the Court concluded that the Arbitrator "cited no credible internal authority [in the cba] justifying his reliance on the Marijuana Act and resultant disregard of the CBA's plain language about marijuana use." The court further concluded that the Arbitrator misread the law to provide affirmative workplace protection, noting that he:

seemed to suggest ... the Act permits parties to a CBA to regulate marijuana use only insofar as employers may forbid actually impaired employees from working. Snow, however, cited no statutory authority for the proposition the Act restricts how parties to a CBA may choose to treat marijuana use. Nor did Snow meaningfully link that proposition to the Act's workplace provision. Instead, he effectively applied his own notions of what the law should be, an approach tantamount to "ignoring" the law.

Finding that the award did not represent a "plausible" interpretation of the contract the Court granted Freightliner's motion to vacate. In light of this finding, the Court did not reach the public policy question.


In contrast, public policy was the primary basis for the decision of the Connecticut Superior Court in State of Connecticut v. Connecticut Employees Union Independent. Grievant had been arrested for smoking marijuana while at work in a state owned vehicle. His employment was terminated, and the termination was grieved and submitted to arbitration. The arbitrator found that the termination was not "within a proper range of progressive discipline" and modified the termination to a six month suspension and ordered the grievant's reinstatement. The State sought to set aside the award "on the grounds that the award violates the State's public policy on drug use while on state duty and operating a state owned vehicle."

The court first determined that there was a well defined public policy against the use of marijuana. It rejected plaintiff's contention that this public policy was diluted because of the state's implementation of its medical marijuana law. The court observed:

Although the defendants are accurate in stating the law, nothing in the records indicate that the grievant was prescribed marijuana. The arbitrator, in his award and opinion, makes no finding that the grievant was prescribed marijuana or that it was medically necessary for him to use marijuana to treat his depression and anxiety. As this court's review is limited to the facts as found by the arbitrator, the arbitrator's award cannot be confirmed on this ground.

On the merits the court concluded:

Similar to the findings of the arbitrator in AFSCME, Council 4, Local 387 , the arbitrator in the present case noted that the grievant's use of marijuana allegedly stemmed from "a number of stressors before and after the time he used marijuana." ... In addition, as noted by the court in AFSCME, Council 4, Local 387, AFL-CIO,, a progressive sanction of reinstatement suggested by the arbitrator in the present case would send the message that stress experienced in one's personal life somehow excuses the use of marijuana in the workplace. Thus, the arbitrator's award in the present case violates a clearly defined public policy.
 
Update: The Connecticut Supreme Court (here) reversed the decision of the Superior Court and upheld the decision of the arbitrator. The Court's decision is discussed at Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator's award

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.

Seventh Circuit: Arbitrator's award ordering company to pay Local Union President and Benefits Representative violates public policy

Titan Tire purchased a tire manufacturing facility in late 2005. It subsequently entered into a cba with the Steelworkers. Until October of 2008, Titan paid the full union salaries of the Local's President and Benefits Representative. Starting in October, however, Titan ceased making these payments, claiming that they were in violation of Section 302(a) of the Labor Management Relations Act. Titan premised its claim on the fact that the individuals holding these positions did not work full time for it and were not subject to its control, and because the Local also represented employees of the Freeport School District. The Union filed a grievance which was sustained by an arbitrator. A District Court confirmed the award, and Titan appealed. The Seventh Circuit has now reversed and issued an extensive opinion discussing the Section 302 issue.

The Court summarized the Arbitrator's award:

After the hearing, the arbitrator issued an opinion sustaining the union's grievance and ordered Titan to reinstate direct salary payments to the President and Benefit Representative. The arbitrator reasoned that Titan's practice of directly paying the President's and Benefit Representative's salaries for two and a half years was "enough time to invoke the doctrine of past practice." The arbitrator further concluded that such payments were "by reason of their former employment" with Titan and "in accordance with the collective bargaining agreement" and as such were legal under Section 302(c). The arbitrator added that "[t]he effect of the bargained-for payment is significant," totaling nearly $80,000 annually for the President and about $50,000 for the Benefit Representative. And that "[t]his savings of expense could result in either lower Union dues or at least no raise in Union dues," and thus "[t]he payment by the Company of the President's and Benefit Representative's salaries is therefore a direct benefit to the Union membership."

Noting the limited scope of review of arbitrator's awards, and its obligation to accept the facts as found by the arbitrator, the Court nevertheless found the award contrary to the statute and therefore violative of public policy. The Court reviewed its own prior decisions in this area, and decisions of the Third, Second and Ninth Circuits addressing similar claims, with differing results. It noted that preventing bribery is not the sole purpose of the statute's prohibition of an employer providing  "money or other things of value" to representatives of its employees. It further noted that the prohibition also served the statute's goal of preventing conflict of interest. The Court was careful to explain that its decision in no way called into question no-docking clauses, but determined that the facts here went well beyond that exception. The Court concluded:

 The arbitrator found that the labor agreements between Titan and the union required Titan to pay the full-time salaries of Local 745's President and Benefit Representative. However, such an agreement violates the plain language of Section 302(a) of the LMRA and is not exempt by Section 302(c) because the President's and Benefit Representative's full-time salaries are not vested rights earned "by reason of" their former employment at Titan. Rather, the President and Benefit Representative earn their current salaries because of their service to Local 745 members. Because the arbitrator's order to Titan to reinstate direct salary payments to the President and Benefit Representative would require Titan to violate Section 302, its decision must be vacated. For these and the forgoing reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.

The Court's opinion in Titan Tire Corp. v. United Steel Workers can be found here.

Arbitration, Management Rights and Public Policy

 Lawrence, Mass. Firefighters, Local 146 grieved the actions of the City of Lawrence in laying off a  dispatcher while retaining a mechanic with lesser seniority. The City rejected the grievance, claiming that the layoff of the mechanic would create a safety issue. The dispute was submitted to arbitration, and the arbitrator determined the City had breached the collective bargaining agreement by deviating from its practice of laying off employees in inverse order of seniority.

 The City sought to vacate the award, arguing that management of the fire department rests with the Chief, and "that with this responsibility comes the inherent right to make decisions regarding policy and staffing." The City maintained that this responsibility was particularly important in divisions  like the fire department, whose purpose was public safety. It claimed that the arbitrator exceeded his authority and that the decision invaded the City's "nondelegable" managerial prerogatives and violated public policy by putting the public at a safety risk. The Superior Court rejected these positions and confirmed the award. The Appeals Court has now similarly rejected the City's arguments and affirmed the lower court. City of Lawrence v. Lawrence Firefighters, Local 146, IAFF.

 The Appeals Court held that:

 While the city is correct that a decision to lay off employees is a nondelagable managerial prerogative, ...it is clear that a public employer may negotiate to follow certain procedures when such a decision is implemented, and the question whether the employer has followed these procedures is a matter subject to arbitration. 

The Court also rejected the City's public policy argument, finding "no 'well-defined' or 'dominant' public policy in favor of fire departments retaining mechanics over other department employees."

In contrast, in a decision also issued in August, the Mass Supreme Judicial Court overturned an arbitrator's award finding the City of Boston in violation of a contractual provision restricting the transfer of certain union representatives between stations or assignments.  City of Boston v Boston Superior Officers Association. The Court concluded that  assignment and transfer of officers within the Boston police department "are non delegable statutory powers of the Boston police commissioner ... and, accordingly, ... the grievance arbitrator exceeded his authority in reversing the officer's transfer."

A similar issue has been raised in Alaska, where the State is seeking to set aside an award of Arbitrator Janet Gaunt finding the State violated its cba with the Alaska Correctional Officers by changing the schedules of certain correctional officers from an eighty four hour, 7 days on/ 7 days off  schedule to a five day/ forty two hour schedule.

Applying a "context rule" of contract interpretation, Arbitrator Gaunt found that the management rights provision of the cba was ambiguous. Looking to the parties past practice, the Arbitrator concluded that the State could not unilaterally change the schedule. She ordered the State to make whole employees impacted by the change and to restore the previous schedule.

 The State has filed a complaint to vacate the award. It alleges that the award violates public policy in that "the Alaska Constitution provides that criminal administration shall be based upon the need for protecting the public, and the Commissioner of the Department of Corrections has the statutory and contractual authority to protect the public by determining the hours of operation of correctional facilities and assigning the work shifts accordingly..." It also claims that the cost of compliance with the Arbitrator's order to restore the previous shifts "is so great as to result in an attempt to supersede the constitutional and statutory authority of the Commissioner of DOC and intrude on core management rights of the Commissioner to expend the public funds in accordance with the laws of the State."

The Alaska Correctional Officers Association links to Arbitrator Gaunt's award here and the State's complaint to vacate the award here.   

Public policy, professors and firefighters

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

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

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

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

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

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

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

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

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

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

Professor Drummonds on the public policy exception to enforcement of arbitration awards

Professor Henry Drummonds has written an article analyzing the current status of the public policy exception to the enforcement of arbitration awards. He summarizes the article:

This article argues that labor union advocates, management representatives, arbitrators, and reviewing courts and labor boards sometimes misconstrue the public policy exception. Union representatives often interpret the exception too narrowly, effectively denying its existence; conversely, management lawyers often attempt to use this narrow exception to excuse a failure to prove misconduct by, or the incompetence of, the employee. For their part, arbitrators sometimes fail to give the exception proper weight in their consideration of remedies. Although arbitrators properly exercise broad remedial discretion, nothing requires a rote award of reinstatement, as distinct from other forms of relief where a contract violation is found. Arbitrators should consider a variety of other remedies including, in appropriate cases, front pay for a reasonable time in lieu of reinstatement. (footnotes omitted).

The article was triggered in part by the controversy surrounding the arbitration award reinstating Portland police officer Ron Frashour (addressed here, here, and here).

Professor Drummonds discusses the current law in both the private and public sector concerning the public policy exception to enforcement of awards, and distills  "Seven Principles"  from the case law.

The article, The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush, can be found on the Social Science Research Network (SSRN)  here.

Portland ordered to comply with reinstatement award

The Oregon Employment Relations Board (ERB) has ordered the City of Portland to comply with the award of Arbitrator Jane Wilkenson that found the City lacked just cause in terminating police officer Ronald Frashour.  Frashour had been dismissed for alleged excessive use of force in connection with the fatal shooting of a citizen. Arbitrator Wilkinson, in an award discussed here, concluded that Frashour had a reasonable belief that the citizen was attempting to retrieve a gun to shoot at others. The arbitrator concluded that the City had failed to establish a violation of its policies concerning use of force and ordered him reinstated with back pay. Disagreeing with the arbitrator’s decision, the City’s mayor announced that he would not implement the award. The Portland Police Association pursued the matter before the ERB, alleging a violation of applicable law. The Oregon statute makes it an unfair labor practice for a public employer “to violate the provisions of any written contract …or to [refuse to] accept the terms of an arbitration award…” There is an exception, however, for an award that “orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct” unless the award complies “with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct related to work.”

The City maintained that the reinstatement of Officer Frashour fell within this exception and that his reinstatement would violate public policy.  Rejecting this contention, the ERB found that once the arbitrator found that the officer had not engaged in misconduct there was no basis for a claim that the officer had been “relieved” of misconduct.

The ERB concluded:

          We have been told by the courts not to engage in a right-wrong analysis, but rather to ensure that the parties got what they bargained for- a binding decision by an arbitrator. … Although our deference to an arbitrator’s award is not unlimited, until such time as an award violates public policy as outlined in ORS 243.706(1), we are bound to uphold the award.

          In this case, the arbitrator determined that Frashour did not violate the City’s policies, and therefore did not engage in misconduct. The City does not have a lawful reason for refusing to implement the award.

  

The ERB’s decision can be found here. The City is considering an appeal of the ERB’s order. Oregon Live: Portland commissioners Fritz and Fish join Mayor Adams, commissioner Leonard in appeal of Frashour reinstatement.

Labor Arbitration in the Courts

General non-discrimination clause does not waive litigation rights, Pyett inapplicable

In Ibarra v. United Parcel Service the Fifth Circuit has held that a general non-discrimination provision in a collective bargaining agreement coupled with a grievance procedure that does not expressly apply to statutory claims is insufficient to waive an employee's right to a judicial forum for claimed violations of Title VII. According to the Court, the Supreme Court's decision in 14 Penn Plaza v. Pyett requires more than "broad but not specific language" to meet the clear and unmistakable waiver standard of Pyett.

Arbitrator's award that employee "retain seniority" does not require retirement service credit

An arbitrator found an employee had been disciplined for just cause but that termination was too severe. He ordered the employee reinstated but provided:"he is to retain his seniority, but to receive no back pay or benefits for the period he has been out of work..." The parties subsequently disagreed concerning the meaning of this phrase and the matter was ultimately presented to the Michigan courts. Reversing the lower court, the  Michigan Court of Appeals determined that the award did not require that the grievant be awarded retirement service credit for the time he was off work. Because grievant did not lose the seniority he had prior to his termination there was no failure to comply with  the award.  Michigan State Employees Association v. Department of Natural Resources.

Arbitrator must consider threshold factual issues to determine arbitrability

The contract between the Teamsters and Roundy's Supermarkets contained a provision that "the Employer may immediately discharge any Union members participating in any unauthorized strike, slowdown ...or other cessation of work, and such Union members shall not be entitled to, or have any recourse to, any other provision of the Agreement." Grievant was required to work overtime on a day he had planned to be off. His production level decreased, and Roundy's concluded that the reduction was  intentional, in protest of the overtime assignment. As a result they terminated his employment.The Teamsters disagreed with the conclusion that the decline in productivity was intentional, and sought to arbitrate that issue. Roundy's refused, and the matter ended up before the District Court in the Eastern District of Wisconsin. The District Court, analogizing the situation to a termination under a last chance agreement, concluded that the factual issue of whether grievant had engaged in an intentional slowdown had to be arbitrated.  If the arbitrator concludes that the precondition was met,however, grievant and the Union would have no further recourse under the contract. The Court found nothing in the contract that gave Roundy's the unilateral right to make the determination of the threshold factual issue. Teamsters "General" Local Union No. 200 v. Roundy's Supermarkets, Inc..

Reinstatement of grievant  who allegedly made racist comments upheld

Mesa Airlines sought to overturn an arbitrator's award reinstating a pilot, (who was also a union negotiator), who had been terminated after sending an allegedly racist email to several other ALPA members. Arbitrator Stanley Sergent  reversed the termination, concluding that the letter failed to rise to the level of harassment or threatening behavior as alleged in the letter of termination. Mesa claimed that the award violated public policy because it condoned racial harassment, that the System Board exceeded its authority by ignoring language of the cba and instead applying its own brand of industrial justice, and that the arbitrator exhibited bias by ignoring a piece of evidence. The District Court in Arizona reject all of these claims and confirmed the award. The court concluded "The Arbitrator did not exceed his jurisdiction by applying the workplace nexus standard or the progressive discipline standard because the CBA does not expressly mention either common industrial concept." Nor did the arbitrator ignore any relevant language in Mesa's anti-discrimination policy. Similarly, the failure of the arbitrator to comment on an email attached to Mesa's brief was insufficient to demonstrate bias. Finally, "Because no law prohibits reinstatement of an employee who makes offensive and racist statements that nonetheless do not constitute workplace harassment, " the court found no violation of public policy. Mesa Airlines, Inc. v. Air Line Pilots Association International.

Arbitration award reinstating police officer found to have engaged in domestic violence deemed contrary to public policy

An appellate court in Illinois has affirmed the lower court’s decision to set aside, on public policy grounds, an award reinstating a police officer terminated for acts of domestic violence and untruthfully responding to questions about the incident. Decatur Police Benevolent And Protective Association Labor Committee v. The City of Decatur The officer had been employed by the City of Decatur since July of 1994. During his employment he had received a number of awards and commendations for his work.

In September, 2009 he received a thirty day suspension for domestic battery. In January, 2010, grievant was again investigated for domestic violence. He was ultimately terminated for the alleged domestic violence and for allegedly making untruthful statements to the department during the investigation.

The arbitrator concluded that, while the City had proved by a preponderance of the evidence that grievant had engaged in this conduct, the appropriate standard of proof to uphold a termination was proof by clear and convincing evidence, which he concluded the City had not met. The arbitrator noted also that there was no evidence of a judicial finding that the officer “has committed the crime of domestic battery”. He converted the termination to a 45 day suspension.

On the City’s action to set aside the award, the lower court concluded that the award “does not in any way promote the welfare and protection of victims of domestic violence. It sends a message that police departments must continue to employ an officer found to be abusive and untruthful, even after employing progressive discipline in an effort to correct this behavior.”

On appeal, the Appellate Court affirmed. It determined that the arbitrator had found (albeit by a preponderance of the evidence) that the officer had engaged in the misconduct alleged, and that it was contrary to public policy to overturn the termination. It concluded:

We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer. We agree with the trial court – there is well-defined and dominant public policy against acts of domestic violence. Acts of domestic violence are even more disturbing when committed by a police officer-whether on or off duty. It is a violation of public policy to require the continued employment of an officer who has been found to be abusive and untruthful. We find the standard of proof is preponderance of the evidence. The arbitrator concluded the act was proved by preponderance and the lie was proved by preponderance. It would be repugnant to public policy to retain [Grievant] as a police officer in these circumstances.

Award overturned as contrary to public policy of non-discrimination

The North Andover Eagle Tribune has an article reporting on the Massachusetts Appeals Court decision upholding the setting aside of an arbitration award reinstating two Middleton Jail corrections officers.  State Appeals Court upholds firings of jail guards for racist posts. The two individuals were terminated as a result of what the court determined to be racist posts on a union run web site. The arbitrator had overturned the terminations, but the court concluded that “Non-discrimination is integral to the proper performance of the duties of the employees, who are correctional officers”. As a result, the court found that the award of reinstatement contravened a strong public policy against discrimination.