Facebook posting exacerbates misconduct, Arbitrator upholds termination

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

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

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

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

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

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

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

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

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

Arbitrator's reliance on past practice not beyond scope of authority

          A Texas Court of Appeals has rejected an attempt to overturn an arbitration award concerning buy back of unused sick leave.City of Laredo v. Mojica.

          The dispute arose when the City stopped buying back unused sick leave, claiming that the contractual buy back process was discretionary and the cost of buying back unused sick leave from all City employees would have been financially burdensome. The union asserted that the City’s decision to suspend the program violated the CBA.

          The arbitrator concluded that the contract did give the City discretion concerning the buy back issue, but “the City’s unvarying practice of exercising its annual option to purchase accumulated sick leave for more than 10 years reasonably has led the Union and its members to expect the City to continue to exercise the annual option absent a good faith reason to suspend the program.”

          In seeking to set aside the award, the City maintained that the arbitrator exceeded his authority under the contract by considering whether the firefighters’ expectation that the City would buy back their sick leave was subject to a “good faith” standard.

          In refusing to set aside the award, the court held:

Because Mojica alleged a violation of the CBA due to the City's past practices, this would affect the interpretation or application of the CBA's provisions. Therefore, we hold the issue of the City's past practices of buying back the firefighters' sick leave was an arbitrable issue

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Here, the CBA did not expressly state that the City's past practice of buying back sick leave or whether the City acted in good faith could be considered. But, even if the arbitrator made a mistake of fact or misapplied the substantive law when he considered the City's past practices, we find his consideration of the City's past practice drew its essence from the CBA