Arbitrators exceeding their powers - three courts reverse

Arbitrator ignored limitations in cba

The cba between CenterPoint Energy and the Gas Workers sets forth several offenses which provide "absolute causes" for discharge and limit an arbitrator to the question of whether the employee, in fact, committed the offense. 

An employee was dismissed for allegedly "falsifying time sheets and neglect of duty," both of which are among the "absolute cause" offenses. The dispute about the dismissal was submitted to arbitrator Richard Miller for resolution. In his award, Arbitrator Miller found that the Company had established that grievant had engaged in the conduct alleged on some, but not all, of the dates in question. Nevertheless, he concluded that the Company did not have just cause for the dismissal. Rejecting the Company's reliance on the "absolute cause" language, the Arbitrator concluded that he was still free to modify the discipline.  He held:

To interpret Article 26 in any other manner would violate all of the basic notions fairness and due process firmly established in the history of industrial relations and implicit in Article 26, which also includes a just cause standard for discipline and discharge.

Arbitrator  Miller converted the discipline to a suspension without back pay and ordered the grievant's reinstatement.

CenterPoint sought to vacate the award, claiming that the arbitrator exceeded his authority by ignoring the explicit language of the contract. The District Court agreed. It found:

The Arbitrator here acted outside the scope of his authority by disregarding the plain language of the CBA.
...

This provision clearly and unambiguously limits the arbitrator's authority to determining whether an employee is guilty of the facts constituting any of the four absolute causes. Once the arbitrator makes that determination, the arbitrator's authority ceases and he can no longer fashion a remedy he believes is appropriate given the circumstances. 

Accordingly the Court vacated the award.

Arbitrator altered the charges against  a teacher and then found charge unsupported

  The NJ Supreme Court in Bound Brook Bd of Education v. Ciripompa overturned an award of Arbitrator Michael J. Pecklers in a teacher tenure proceeding. 

 Two counts of tenure charges had been brought against the teacher for unbecoming conduct. The first related to claims that the teacher had used his employer issued laptop to send nude pictures of himself and to solicit similar pictures from women on the internet. Count II alleged that he had engaged in inappropriate conduct towards female staff members and made comments about their dress and physical appearence. The tenure charges were submitted to Arbitrator Pecklers for resolution. Arbitrator Pecklers found that the Board proved the allegations of Count I. With regard to Count II,  he noted that while the Count did not specifically allege sexual harassment, in light of the evidence this was the substance of the allegation. He then considered the evidence in light of the NJ Supreme Court's decision in Lehmann v. Toys 'R' Us, Inc, a case interpreting the NJ Law Against Discrimination, and found that the evidence did not support a finding of a hostile work environment.  In view of his findings regarding Count I and his dismissal of Count II the arbitrator converted the dismissal to a 120 days suspension. 

On the School District's appeal, the case was ultimately appealed to the N.J. Supreme Court.  Describing the issue before it, the Court wrote:

 In this case we determine whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination (LAD) case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. We find that he did.

The Court determined that the Arbitrator erred in essentially modifying the allegations in Count II from unbecoming conduct to sexual harassment, noting 

Here, the arbitrator erroneously faulted the Board for failing to prove a charge that it did not bring. The arbitrator erred in his reliance on Lehmann because he imposed a different and inappropriate standard of proof on the Board to sustain its unbecoming conduct in the presence of students claim. The arbitrator "imperfectly executed" his power by misinterpreting the intentions of the Board so significantly as to impose a sexual harassment analysis, when such an analysis was wholly ill-suited in this context

The Court ordered the dispute remanded to a different arbitrator to decide the question of whether the teacher committed unbecoming conduct and the appropriate penalty if he did so. 

Arbitrator improperly ordered University to award tenure

The District Court of Appeal in Florida found that an arbitrator erred in ordering Florida Atlantic University to award tenure to a professor. The arbitrator found that the University relied on improper criteria in its decision to deny tenure and ordered the school to follow the established criteria and  grant the professor's application for promotion and tenure. A lower court  found that the arbitrator exceeded his authority in awarding tenure, but ordered the school to provide grievant with an additional year of employment during which she could reapply for tenure. The Court of Appeal in Nash v. Florida Atlantic University found both the arbitrator and the lower court erred.  It held:

...the arbitrator exceeded his authority in directing the University to grant Nash a promotion and tenure. Although the parties stipulated that the arbitrator would determine "the appropriate remedy" for a breach of the CBA, the parties did not expressly place before the arbitrator the issue of whether Nash should have been granted promotion and tenure. Rather, the issue was whether the University had violated the CBA's procedure for determining an application for tenure and promotion. It is clear to us that once the arbitrator found the University violated the procedure by not relying on established criteria, "the appropriate remedy" was for the arbitrator to direct the University to review Nash's application using the correct criteria.

The court also rejected the lower court's order of an additional year of employment, concluding that the lower court should have directed the University to review grievant's application using the correct criteria. 

Recent Developments-Quick Hits

Arbitrator overturns termination of police officer for claimed use of excessive force

Arbitrator Stanley Sergent has overturned the termination of a police officer in Sarasota FL who had been fired for alleged use of excessive force. Grievant had admittedly used several "empty-hand strikes" in an effort to control the individual he was attempting to arrest. The City maintained that the number of strikes, together with the absence of any time between them to determine compliance, rendered the use of force excessive. Initially Arbitrator Sergent noted that the Supreme Court has held that the test for whether the use of force is excessive must be determined from the perspective of a reasonable police officer on the scene, not "with the 20/20 vision of hindsight."  Arbitrator Sergent determined that grievant reasonably believed the subject was continuing to resist. He also found that while the City could have a more restrictive policy, it failed to demonstrate that grievant had violated that policy. While ordering grievant's reinstatement, the arbitrator did find that grievant's use of profane and abusive language and flagrant demonstration of anger and frustration was "clearly inappropriate,' warranting some punishment. Accordingly he replaced the termination with a thirty day suspension. The Sarasota Herald Tribune reports on the decision, Sarasota officer fired in Club Ivory beating to be reinstated, and links to Arbitrator Sergent's award here.

Student Assistance Coordinator who facilitated "refund" of drug transaction properly terminated

 Arbitrator Michael Peckler has upheld a determination of "conduct unbecoming" an educator who allegedly arranged a refund of a cash for marijuana transaction between students after one of the students complained of being shortchanged. After an extensive analysis of the conflicting claims, the Arbitrator concluded:

 [Grievant's] facilitation of the drug/cash exchange to make the controversy go away is contrary to the proactive, vigorous, front-line approach that is required of all teaching staff members. And her brokering of a refund between G.H. and J.C. combined with her position that she was going to report the students but for the school administration being too busy demonstrates such an egregious display of poor judgment and obfuscation that removal is the only appropriate remedy.

Arbitrator Peckler's award can be found here.


Arbitrator upholds suspension for false claim in grievance

Arbitrator Harry Crump has upheld a four day suspension imposed on a Blaine, MN police officer. Grievant had been issued a letter of reprimand for allegedly working private overtime while on call without arranging for appropriate coverage. The Union prepared a grievance on her behalf, which she signed. The grievance asserted that grievant had arranged for a named detective to cover her on call assignment. The City deemed this assertion to be unfounded, and imposed a suspension for grievant's alleged dishonesty. Arbitrator Crump found no evidence that the assertion was not "knowingly or deliberately untruthful" and denied the grievance. He explained:

The undersigned opine that there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.

Arbitrator Crump's award can be found here.

Sexual conduct between teachers on school premises insufficient to support termination

The New York Appellate Division has concluded that the termination of two teachers accused of engaging in sexual activity on school premises, upheld by two arbitrators, was "shockingly disproportionate" to the misconduct.

The two teachers had returned to the school after dinner to attend a school musical competition. While the performance was underway, the two were discovered in an upstairs classroom. The school asserted that they were partially undressed and engaging in what appeared to be sexual behavior. The teachers denied any sexual impropriety and claimed that one had been rendering medical assistance to the other.

Arbitrators upheld the dismissal of both teachers, and the matter was appealed to the courts. In both cases, the Appellate Division found that termination of employment was too severe. Essentially accepting the arbitrators' findings that the two had engaged in the conduct alleged, the court nevertheless concluded that termination was unwarranted.  In both cases, the Court observed:

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake ... Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner's engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship or engaged in inappropriate behavior with a student ...

Nor did the Court find that the extensive publicity the incident engendered justify termination, noting:

While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination

Accordingly the court vacated the penalty of termination and remanded the cases for imposition of a lesser penalty.

The Court's opinions can be found here and here.

Teacher discipline, "Rubber Rooms" and judicial review

The New York City Board of Education has filed suit against the United Federation of Teachers, alleging that the Union has failed to implement an agreement to increase the number of arbitrators available to hear disputes involving claims of teacher misconduct or incompetence. A copy of the complaint can be found here. The issue arises from an April 2010 agreement between the Board and the UFT designed to expedite the process for arbitral review of such cases and eliminate the infamous "rubber rooms" to which teachers awaiting hearings were assigned. The Board claims that the Union has refused to agree to sufficient new arbitrators and has refused to follow the alternate process for selection of arbitrators when no agreement can be reached.

Two recent cases address issues of discipline for teacher conduct and competence and the scope of judicial review of those decisions.

 The Appellate Division of the New York Supreme Court has recently denied leave to appeal further the denial of an effort to overturn an award of Arbitrator Robert Grey upholding the termination of a New York City teacher. The dispute involved ten specifications (many with subparts) against the teacher. Among the allegation were "neglect of duty, failure to follow procedures and carry out normal duties, insubordination, and incompetent and inefficient service."

After hearing the evidence, Arbitrator Grey dismissed a number of the specifications. However he ultimately found merit to several others and upheld the termination. He concluded that the teacher "was unable to provide a valid educational experience for the students assigned to her classroom"  and that her "classrooms bordered on anarchy and had an unwarranted and unacceptable potential for danger that no student should be required to endure...." .The teacher sought to vacate the arbitrator's award, claiming that the process was biased, that  had been denied due process, that the decision was arbitrary and that the penalty was "shocking to the conscience"

The Supreme Court (the state's trial level court) rejected all of these claims. The court found neither  bias nor the appearance of bias and noted that the record showed the arbitrator "dismissed some of the specifications against [the teacher] because the conduct charged by school officials either did not rise to the level of the specification alleged, or  respondent had not met its burden of establishing [the teacher's] guilt of that charge. The remaining specifications that were not dismissed are well documented in that many of the exhibits that petitioner herself has provided in support of her petition." Among the specifications dismissed were allegations that the teacher had not provided "bell to bell" instruction and an allegation that she had :threatened to pass gas if students continued to converse in class. Supported, however, were allegations that she had failed to effectively manage and control her classroom, failed to maintain a "late log" and what Arbitrator Grey described as the teacher's "repeated failure to implement advice, counsel, instruction and recommendations..." concerning lesson planning , classroom instruction and classroom management.
Arbitrator Grey also rejected the teachers claim of disparate treatment

The court upheld Arbitrator Grey's award, concluding:

     The determination to terminate petitioner from employment is firmly supported by the extensive documentation of her incompetence. Therefore, the penalty imposed does not shock the conscience or one's sense of fairness.
     In view of the forgoing, respondent has met its burden of showing that petitioner does not demonstrate any statutory basis for vacating or modyfyibg the ward, and therefore, failed to state a cause of action. ... Furthermore, respondent has shown the hearing officer's award has a rational basis. Having failed to state a cause of action, respondent's cross motion for the dismissal of the petition is granted.

 The Supreme Court's opinion can be found here. The Appellate Division opinions affirming the decision and denying leave to appeal can be found here and here (p.64).


In contrast, a Supreme Court judge has overturned an award of Arbitrator Alan Berg upholding the termination of a teacher who was found in possession of 20 glassine bags of heroin as he was reporting for jury duty. Arbitrator Berg concluded that the teacher had subjected himself and the Department of Education to widespread ridicule, "compromising his ability to retain the respect of students and thereby throwing away his ability to be an effective teacher...." He noted that the teacher's conduct left the DOE with no way to know if the teacher had brought the same drugs to school.

Judge Manuel Mendez overturned the arbitrator's award, concluding:

Petitioner herein … was charged with Criminal Possession of a Controlled substance in the Seventh Degree 9a Misdemeanor),  and immediately at arraignment was given an Adjournment in Contemplation of Dismissal. After six months the charges were dismissed and the record sealed. The arrest was not for conduct at the school site or involving any of its students. There is no evidence that he as a criminal record, had been arrested before or since this one incident. There is no evidence that this one arrest or the publicity it generated has impaired his ability to reach, or that he has lost the respect of his students, or can be perceived by his students as a responsible adult to whom they pay attention. Petitioner has admitted he has a substance abuse problem; the arrest is a manifestation of that problem; he is receiving treatment for that problem and is progressing in his treatment. Under these facts, termination of employment is unduly harsh, an abuse of discretion and shocking to this court’s sense of fairness.

Judge Mendez's opinion can be found here.

Ambiguous contract and past practice defeat teachers' claim

The N.J. Appellate Division has rejected an attempt by the Education Association of Mt.  Olive to overturn an arbitrator's award. 

The contract between the union and the Board of Education provided that "a work year for teachers shall include 1 opening day, 180 student days, and two full in-service days." The contract also provided that the last two scheduled student days of school would be shortened days. The language of the contract had remained unchanged for an indeterminate number of years, and during that time teachers had consistently worked full days on the last two scheduled student days.

When the Board issued the calendar for the 2010-2011 school year the Association filed a grievance challenging the calendar because it showed the last two scheduled days would be shortened days for students only. 

The grievance was ultimately submitted to arbitration, and the arbitrator deemed the relevant language of the contract ambiguous. Turning  to past practice he found that the last two scheduled days had consistently been shortened for students only and, as a result, denied the grievance. 

The Education Association sought to overturn the award, arguing that the relevant language was not reasonably debatable and the arbitrator should therefore not have considered past practice. The trial court rejected these claims, and the Appellate Division has now affirmed. Education Association of Mt. Olive v. Mt. Olive Board of Education.  The court concluded:

A careful review of the record supports the conclusion that the Agreement is ambiguous, as the arbitrator determined. The Agreement mentions shortened days at the end of the school year, but does not indicate that they are shortened days for students only. Thus, the arbitrator properly considered the parties' past experience, which indicated that teachers had worked full days on the last two days of the school year, even though the students had shortened days. Based on this past practice, the arbitrator reached a reasonably debatable interpretation of the relevant section of the contract. Accordingly, the trial court correctly refused to set aside the award.

Labor Arbitration in the News

School District seeks to set aside award reinstating teacher accused of using improper physical force

The Kewaskum, Wisconsin School District is seeking to set aside an arbitrator’s award reinstating a special education teacher who had been terminated for allegedly using improper force with students. jsonline.com:Kewaskum School District asks court to uphold teacher's firing. The District claims that the Arbitrator failed to accord credence to student testimony unless it was corroborated by independent adult witnesses and that the award “represents deliberate indifference to the likelihood that more students will be deprived of the full benefit of educational programs to which they are entitled.” Arbitrator Stanley Michelstetter’s award can be found here.

Termination of teacher for improper contact with student upheld

The Pensacola News Journal reports on an award upholding the termination of an Escambia, FL teacher for improperly texting a student Teachers texting students: Escambia case raises questions, concerns. Arbitrator Jeanne Charles Wood upheld the termination, finding that Grievant’s texting of the student, which extended over a period of several days and included texts at various times through the day and into the evening, demonstrated “repeatedly exercised poor judgment” and that the escalation of personal contact was “sufficient to give the Employer grave concern as to whether the Grievant can be trusted in the school system” The Arbitrator concluded that the Employer has a duty to protect the children in its care and “placing the Grievant back in the school system would be a breach of that duty.” The full text of Arbitrator Wood’s award can be found here.

Arbitrator orders apology as remedy

Arbitrator Jonathan Monat has ordered the USPS District Manager to apologize to employees affected by the bullying and intimidation of a former supervisor. Arbitrator Monat found that the conduct violated the Joint Statement on Violence and Behavior in the Workplace and that LA District Management had failed for an extended period of time to address the problem. As a remedy, the Arbitrator ordered the LA District Manager to “issue a written apology to the employees in the Redondo Beach Post Office stating that it failed to act…. This apology shall acknowledge the feelings and concerns of the Redondo Beach employees and state that the District Manager will act proactively…” in the future. The Arbitrator also ordered the District Manager or his high level designee to personally apologize to the employees in the office. The text of the award can be found here.

NYC unsuccessful in efforts to overturn school closing award.

SchoolBookreports that a judge has refused to overturn Arbitrator Buchheit’s award concerning New York City’s efforts to close and reopen certain schools it believed were underperforming. Judge Backs Union in Turnaround Ruling. The Judge concluded that the Arbitrator acted within his authority under the contract. The City indicated it intends to appeal the ruling. The arbitrator’s original decision is discussed here.

Two awards affirmed, one vacated

Three recent cases reach different results in actions to set aside arbitration awards.

In Wausaukee School District v. Wausaukee Education Association a Court of Appeals in Wisconsin reverses a lower court decision setting aside an arbitration award. The issue before the arbitrator was whether the School District violated the cba by partially laying off one teacher. The arbitrator upheld the union’s grievance, finding that the layoff was not driven by financial considerations or specific curriculum related reasons but was instead undertaken for improper reasons and in bad faith. He awarded the grievant back pay equivalent to the job reduction. The School District sought to vacate the award, and the lower court granted that request. It concluded that the arbitrator did not find a violation of the layoff article, that the question of whether it was necessary to lay off teachers was beyond the arbitrator’s authority, and that the decision to layoff was not a mandatory subject of bargaining. The Court of Appeals reversed, finding that the arbitrator, in effect, found a violation of the layoff article because he concluded the District “purported to lay off [Grievant] even though there was no credible reason to believe that the District acted on budgetary needs, curriculum needs, or any other reason…” necessary to decrease the number of teachers. While the cba gave the District significant discretion to make layoffs, the Court concluded that the arbitrator properly concluded that the District could not use a layoff as a pretext for terminating a teacher when the evidence failed to show that its actions were in fact based on budgetary reasons.

In Trenton Educational Secretaries Association v. Trenton Board of Education a NJ appellate court similarly reversed a lower court decision setting aside an arbitrator’s award. The underlying grievance involved a claim that certain employees were eligible for compensation for performing the duties of a higher level position. The arbitrator upheld the grievance and the Board of Education went to court seeking to vacate the award. The court granted the BOE’s request, concluding that the award was based on clearly mistaken view of the facts and, in any event, was contrary to public policy. Overturning the lower court, the appellate court concluded: “There is no mistake of fact, much less one so gross as to justify overturning the arbitration award.” The court also rejected the lower courts public policy reasoning, finding it was based on “amorphous considerations”, not a policy embodied in legislative enactments, administrative regulations, or legal precedents. It concluded that the award“does not contravene public policy; it merely honors the contractual promise the Board made to its secretaries in …the Agreement”.

In contrast, in Horton Automatics v. Industrial Division of the Communications Workers of Americathe US District Court for the Southern District of Texas set aside an award reinstating an employee found to have violated the employer’s safety rule. The cba provided that “In determining whether the Company had cause to impose the aggrieved disciplinary action, the Arbitrator shall be limited to deciding whether a published rule or regulation which formed the basis for the discipline was in fact reasonable and violated by the employee” The arbitrator found the safety rule in issue was a reasonable one, and that the employee had violated it. Nevertheless, he concluded that the dismissal was without just cause because the employee had not terminated employees for violation of what the arbitrator considered similarly serious (but different) safety violations. Vacating the award, the District Court determined:

The Arbitrator further second-guessed the relative importance of different “serious” disciplinary violations. As a result, the Arbitrator substituted his judgment for that of Horton, the company responsible for the safe operation of the business for which [Grievant] had been employed. This, he was not empowered to do….

***

As a matter of law, the Arbitrator exceeded his powers … when he inquired into matters other than the reasonableness of the safety rule and the fact that [Grievant] had violated it.