Arbitrator conditions reinstatement on personal apology

Grievant was employed as a civilian dispatcher by the Cleveland Police Department. On March 6, 2013, he handled a call from the Board of Education reporting a school lock down and a belief that an unidentified individual was in route to the school to "shoot up" the facility and possibly those in it. Grievant's handling of the call, and his conduct immediately thereafter, was the subject of criticism by the management of the call center. He was ultimately disciplined for a number of acts of alleged misconduct, including improper use of his personal cell phone to conduct official business, leaving the dispatch center early without permission, and being "untruthful" concerning permission he claimed to have received from the Commander of the center concerning handling of the situation. He was also charged with using "disrespectful, derogatory and insubordinate language" when describing his interactions with the Commander. These conversations were recorded. Grievant's employment was terminated.  The Union grieved the termination and the matter was submitted to Arbitrator William Allport.

Arbitrator Allport found that grievant had engaged in much of the conduct alleged, but found termination too severe a penalty. With particular reference to Grievant's language concerning the Commander, Arbitrator Allport found Grievant's comments "at best ill advised, derogatory, and regretful." Given the "gravity" of the comments, together with Grievant's other transgressions, the Arbitrator concluded that Grievant should be reinstated without back pay. As part of the remedy, however, he also ordered Grievant to "compose and sign a Letter of Apology" directed to the Commander, sincerely apologizing for his remarks. This letter was to be personally delivered to the Commander by Grievant, accompanied by his Local President and Union Counsel, and was to be paired with an oral apology. At the option of the Commander, the letter could be posted in the center for a period of 45 days.

Arbitrator Allport appended to his award a sample Letter of Apology. The sample reads:

To: Commander S
I genuinely regret the insolent and disrespectful statements that I made respecting you on March 6, 2013. There is no excuse for such conduct. I was wrong to make those statements and I sincerely apologize to you for such inappropriate and offensive remarks.
I understand and agree that my conduct on March 6, 2014 was totally unacceptable by any standard.
I can assure you that I will never make disrespectful comments concerning you or any other supervisory employee of the Cleveland Police Department in the future.
I am hopeful that you will forgive me for this indiscretion.
Once again my sincere apology.
_________________________________
Grievant
Dated:

Should Grievant decline to write and deliver the letter, and the personal apology, the reinstatement called for in the Award would become "Void" and the original termination stand.

19actionnews reports on the dispute (Another worker fired from Cleveland police gets his job back), and links to Arbitrator Allport's Award here.

Court: Arbitrator can compel employee to resign

Grievant was a police sergeant with the Trenton, OH police department. His employment was terminated for events relating to his issuing a traffic citation to the wife of a firefighter from a neighboring community. After the citation was voided by the Lieutenant, grievant sent a "clearly sarcastic" email to him and complained to the Chief. According to the Chief and Lieutenant, grievant was instructed to take no further action until a meeting among them could be scheduled. Nevertheless grievant went to the home of the individual to whom he had initially issued the ticket and reissued it. He also spoke with the firefighter-husband, telling him that the Lieutenant's action in voiding the ticket was unlawful and that he may face criminal charges. Grievant also investigated the Lieutenant's use of an impounded vehicle using a law enforcement data base and meet with the County prosecutor while on duty. After a hearing grievant was deemed to have violated the Department's Code of Conduct and his employment was terminated. The Ohio PBA filed a grievance and pursued the case to arbitration.

The arbitrator determined that grievant's reissuance of the traffic citation was insubordinate and deserving of disciplinary action. She also concluded that the conversation with the firefighter-spouse warranted "some significant disciplinary action." The arbitrator additionally noted that the circumstances leading to the discipline created distrust among the three commanding officers of a small police department. As a result, the Arbitrator concluded:

The grievance is sustained in part and denied in part. [Grievant’s] discipline shall be reduced to a thirty day unpaid suspension but he shall not be reinstated to employment. [Grievant] is awarded back pay from August 20, 2011 to the date of this Award together with benefits and any out of pocket loss as a result of the termination of benefits from the date of his termination to the date of this Award. The termination shall be removed from [grievant's] personnel file and [grievant] will be considered to have resigned from employment effective on the date of this Award.

The Union sought to vacate that portion of the award requiring grievant to involuntarily resign. The City sought to confirm the award. The Court of Common Pleas agreed with the Union, and the City appealed. The Ohio Court of Appeals has reversed and confirmed the Arbitrator's award.

Contrary to the lower court, the Court of Appeals concluded that the award drew its essence from the cba, noting that the cba defined available forms of discipline as written reprimands, suspensions without pay, and discharge. The Court observed:

The arbitrator further concluded that, because of [grievant’s] conduct in relation to his commanding officers, distrust was created within the Police Department that could not be eradicated. In addition, the arbitrator explained the advantages and disadvantages of resignation rather than termination. While the arbitrator determined [grievant’s] conduct warranted him leaving the police department, she did not want to obstruct his future employment in law enforcement. Thus, the arbitrator made one remedial determination, finding that [grievant] should serve a 30-day suspension without pay followed by resignation from employment while having the termination removed from his personnel file.

The court concluded that the arbitrator’s holding that grievant should resign fell within the essence of the cba “which permits the removal of an employee from employment.”

The dissent would have affirmed the lower court, noting "I think it inappropriate to allow an arbitrator the authority to force an employee to resign from employment when an employer does not have this type of power."

The court's opinion in Ohio Patrolmen's Benevolent Association v. City of Trenton can be found here.