Work assignment grievance survives NLRB unit clarification

Certco, Inc. initially operated a single warehouse on Verona Rd. in Madison, WI. The employees in that facility were represented by Teamsters Local 695. Certco subsequently opened three new distribution facilities and staffed them on a non-union basis. On two occasions, the NLRB  rejected claims that the new facilities were accretions to the bargaining unit.

Local 695 also filed a grievance, claiming that the work performed at the new facilities was bargaining unit work, and that Certco had violated the cba, which provided that Certco "shall not direct or require its employees or persons other than the employees in the bargaining unit ... to perform work which is recognized as work of the employees in said units."

An arbitrator sustained the grievance and ordered Certco to return to bargaining unit employees all work which had been transferred out of the facility. Certco sought to set aside the award as contrary to the NLRB's unit clarification decisions. The district court, and now the seventh circuit, rejected that position. The court observed that what the NLRB decided was that "work at the [non-union] facility did not accrete to Local 695 as a matter of federal law ...." The court concluded that the NLRB's decision did not address the contract interpretation issues raised by the grievance, and therefore did not impact the arbitrability of the contract interpretation grievance.

Agreeing with the District Court that the arbitrator's award should be confirmed, the court noted:
 

Certco treats the arbitrator’s decision as requiring it to recognize the Union as the representative of workers at Femrite and Daniels, but what the arbitrator actually ordered is that the work formerly done at Verona Road be returned there (where the Union already is the exclusive bargaining  representative), or be performed by bargaining-unit members, unless the Union agrees to modify  Article 12(1). Certco  may find compliance expensive, but the costs of keeping one’s promise do not excuse performance.

The Seventh Circuit's decision can be found here.

Arbitrator finds poor performance, not dishonesty; overturns discipline of correctional officers.

   Arbitrator Michael Cavanaugh has issued an award sustaining, in large part, grievances filed by  correctional officers (CO) employed by the State of Washington's Department of Corrections. Three COs  had been dismissed and one, a shift sergeant, demoted, following an investigation of their job conduct during the time leading up to and following the killing of another corrections officer by a prisoner.

Background

   CO Jayme Biendl was killed by an inmate in the prison chapel.  The death was investigated by several agencies, including the local police department. After the criminal investigation was concluded, the DOC conducted “just cause” investigations into seven employees concerning their compliance with DOC expectations. In at least three cases, issues also arose concerning allegedly “inaccurate and/or false statements” made during the investigation. As a result of the investigation three COs were terminated, and a fourth, the shift sergeant, was demoted.  The reasons for the disciplinary action included claims that they had provided false or inconsistent information,  failed to follow Department policy, and, in the case of the sergeant, failed to properly supervise one of the other grievants and failure to comply with directions concerning that supervision.  Because of the overlapping evidence the four cases were tried together.

Standard of Proof

Arbitrator Cavanaugh first addressed the appropriate burden of proof to be used in deciding the cases. He rejected the Union’s position that “proof beyond a reasonable doubt” should be used. He noted that this standard is applicable almost exclusively in criminal cases, and while the consequences of termination of employment are severe, they do not rise to the level of loss of physical liberty and loss of civil rights involved in conviction of a crime. Instead, Arbitrator Cavanaugh concluded that the Department of Corrections should be required to adduce “convincing” proof, noting:

…the potential stigma attaching to the discharge of a corrections employee, particularly a discharge based on alleged dishonesty, justifies a level of proof well beyond the barest preponderance of the evidence. That is, in the law enforcement and corrections context, proven dishonesty can lead not only to the loss of a job, but the loss of a career. Most corrections employers, like the Department, rightly demand “unfailing honesty,” and once having been found guilty of dishonesty, a corrections officer stands very little chance of ever being hired by another agency. Consequently, I will look for proof that convinces me that it is substantially more likely than not that a Grievant committed the offense(s) charged.

Dishonesty/Intentional Falsification

   Three of the corrections officers involved were alleged to have made incorrect log entries, false certifications, or revisions to their statements concerning their conduct on the night in issue.   The Arbitrator rejected virtually all of these charges as a basis for termination. Observing that “allegations of dishonesty in corrections, at least when cited as justification for summary discharge, must be established with the clearest proof,” the Arbitrator found insufficient evidence to support a finding of willful dishonesty or deception. Noting that some of the entries and statements may have been inaccurate, the Arbitrator found  “ [i]n the absence of convincing evidence that an employee stood to gain in some way from providing inaccurate information, explanations such as honest mistake, sloppiness, or lack of attention to detail become just as likely as dishonesty, and perhaps even more so.” These types of offenses, according to the Arbitrator, are more typically addressed through corrective action and progressive discipline rather than summary termination.

Violation of Rules

  It was essentially undisputed that at least some of the grievants failed to follow the prison’s written rules or policies. However, Arbitrator Cavanaugh noted that “for discipline purposes (and particularly for summary discharge) the 'rules' are not necessarily what is written down, but rather what supervisors consistently allow employees to 'get away with'.” Finding grievants’ conduct consistent with what they had previously done without correction or discipline, the Arbitrator found this an insufficient basis for termination.

Poor Supervision

Finally, Arbitrator Cavanaugh overturned the demotion of the shift sergeant, rejecting the DOC’s assertion that he had willfully or deliberately refused to comply with a directive to take action concerning the failure of a CO under his supervision to adhere to proper procedure. Concluding the sergeant’s conduct demonstrated a level of substandard performance, and was  part of a pattern of institutional complacency, the Arbitrator concluded that this conduct was more appropriately addressed through corrective action rather than termination. He reversed the termination but did find just cause for a written reprimand for the sergeant’s failure to address the subordinate’s performance as directed.

Arbitrator Cavanaugh's award can be found here. The DOC’s response to the Arbitrator’s award can be found here.

Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations

Arbitrator Peter Feuille has sustained in part a grievance filed on behalf of a Des Plaines, IL police officer dismissed for alleged excessive use of force.  The incidents in issue occurred in June of 2009 and January of 2010.

In August of 2011, the Acting City Manager received a letter accusing the grievant of having "brutally beaten" several arrestees. He testified that this was the first he learned of the allegations, and he assigned a Deputy Chief to conduct an investigation. The investigation took place during the last four months of 2011 and concluded in an investigatory report dated December 30, 2011. In accord with the recommendations of the report, the City terminated the employment of grievant in March of 2012, and the Union (Metropolitan Association of Police, Chapter No. 240) brought the dispute to arbitration.

After a lengthy review of the evidence, Arbitrator Feuille concluded that grievant's use of force was "unnecessary, unjustified, unreasonable, and clearly in violation of [General Order] 10.01." He also concluded that grievant had improperly failed to report his use of force, contrary to the Department's reporting mandate. Finally, he determined that grievant's explanation during the investigation of why he had struck an individual he was transporting "not remotely credible" and, as a result, found the grievant was not truthful in his explanation. This untruthfulness, the Arbitrator concluded, violated the Department rule requiring officers "to be truthful at all times, whether under oath or not." The Arbitrator also found a second incident of improper use of force, and two additional instances of failure to report the use of force. Summarizing his findings, the Arbitrator noted:

 Putting this evidence together, it shows the following. First, the Grievant improperly used force ..., in violation of Department policy .... Second, the Grievant failed to report the use of force .... Third, during his November 2011 interrogation  the Grievant was untruthful about why he used unjustified and excessive force ... , also in violation of Department policy. As indicated in the analysis above, the evidence provides very strong proof of the Grievant's egregious misconduct.

Notwithstanding this conclusion, however, the Arbitrator also noted that "there is more to the concept of  discipline for just cause than proof of wrongdoing. The City also must satisfy the due process considerations incorporated into the just cause concept in order to demonstrate that just cause existed for the Grievant's termination." The Arbitrator found that the City failed to meet this element of just cause.

  Arbitrator Feuille concluded that the delay between the incidents in issue and the discipline was unwarranted and potentially harmful to the grievant. He observed:

Ultimately we will never know what information was lost by the lengthy delay in conducting the City's investigation. But the possibility that this delay may have prejudiced the ability of the Union to defend the Grievant in this matter cannot be overlooked. Accordingly, I find that the long delay in the City's investigation of the Grievant's misconduct, and the concomitant delay in disciplining the Grievant, means the City's discharge of the Grievant was procedurally flawed.

He rejected the City's contention that it was unaware of the facts until receipt by the Acting City Manager of the letter in August of 2011. He noted that the Department's Command Staff was aware of, and tolerated, Grievant's use of force, and was therefore "partly at fault" for the Grievant's misconduct. He determined that this tolerance  of misconduct "constitutes a second due process consideration that prevents the Grievant's discharge for being for just cause."

However, the Arbitrator concluded that these procedural shortcomings "do not exonerate" grievant of his serious misconduct. He ordered the grievant reinstated  without back pay, with the time off treated as a disciplinary suspension. He further provided that the reinstatement be on a "last chance" basis for three years from the reinstatement, with any similar violation entitling the City to immediately discharge grievant, with the Arbitrator hearing any arbitration arising from such a termination.

Arbitrator Feuille's Award, with certain names redacted, can be found here.


Update: A Cook County court has overturned Arbitrator Feuille's award  Judge upholds firing of Des Plaines cop

Decertification of Union doesn't impact pending dismissal arbitration

   Nurses United for Improved Patient Care represented a bargaining unit at Lee's Summit Medical Center. The Medical Center dismissed an employee and the Union pursued the dispute to arbitration. During the pendency of the dispute, the Union was decertified after it disclaimed interest in continued representation. Subsequently an arbitrator found the dismissal to be without just cause and ordered the employee reinstated and paid back pay from the date of the dismissal until reinstatement. The Medical Center sought to set aside the award to the extent it ordered backpay and reinstatement beyond the Union's decertification. The district court granted summary judgment, and the Medical Center appealed to the Eighth Circuit.

   Affirming the lower court, the Circuit noted it was "beyond question" that an arbitrator may award reinstatement and back pay for periods beyond the cba's expiration so long as in fashioning the remedy the arbitrator was interpreting and applying the contract. The court rejected the Medical Center's attempts to distinguish its situation, noting:

   The Hospital argues that these general principles do not apply because the CBA did not simply expire, it was “voided” when the NLRB decertified the Union. We reject this contention. The Hospital cites no NLRB decisions or rulings giving this effect to decertification, and we are confident the Board did not intend that its decertification would nullify grievance and arbitration proceedings pending under the Union’s CBA. Cf. Union Switch & Signal, 316 N.L.R.B. 1025, 1036 (1995). In our view, so long as the governing CBA authorizes -- in other words, does not prohibit -- post-expiration remedies for pre-expiration grievances, the manner in which the CBA expires has no effect on the arbitrator’s authority.

   The Court also rejected the Medical Center's contention that grievant lost all job protection following the decertification, concluding that there was "no evidence" that grievant would have been dismissed the day after expiration if the case had proceeded more expeditiously and she had been reinstated prior to that time.

   Finding no basis to conclude that the arbitrator's award failed to "draw its essence" from the cba the Court affirmed the judgment of the district court.

The Court's opinion in Midwest Division-LSH,LLC, doing business as Lee's Summit Medical Center v. Nurses United for Improved Patient Care, CNA/NNOC, can be found here.

Police officer's denial of misconduct insufficient to establish untruthfulness

A San Antonio police Lieutenant was "indefinitely suspended" by the Department after being charged with violation of several Department rules. The discipline arose from an incident between grievant and a Deputy Constable who was providing security at a local restaurant/bar. The Deputy asserted that after he denied access to grievant because he was carrying a bottle of liquor, grievant identified himself as a San Antonio police officer. After grievant returned the bottle to a limo he and his companions had hired for the evening he returned to the door where the Deputy again denied entry because grievant appeared intoxicated. The Deputy claimed that grievant then let loose a string of racial slurs, identified himself as an SAPD Captain, and claimed he would "have his badge and gun". The Deputy notified his supervisor and also called SAPD.

 After an investigation of the incident by Internal Affairs, grievant was charged with drinking while off duty in violation of a rule prohibiting drinking "to an extent which renders him unfit to report to duty." He was also charged with violating a Department rule providing "Members, whether on-duty or off-duty, shall be governed by the ordinary and reasonable rules of good conduct and behavior, and shall not commit any act tending to bring reproach and discredit on themselves or the Department". Finally, grievant was charged with "untruthfulness". Specifically "Since [grievant] is in fact not a captain, his statement was untruthful and [grievant] was also subsequently untruthful during the investigation into this incident when he denied having made any threatening and racist statements to Deputy Ahumada".

Arbitrator William McKee rejected a portion of the charge related to off duty drinking. In agreement with the Union, he found the "unfit to report to duty" standard untenably vague. He did conclude, however,  that grievant was intoxicated in public in violation of the rules. He also found that the evidence supported the charge that grievant had used "inappropriate, abusive and intimidating language" in his interaction with the Deputy and that grievant's conduct demonstrated a lack of sound judgement.

With regard to the untruthfulness allegations, Arbitrator McKee found the first charge, relating to the alleged misrepresentation of grievant's rank, unsupported by the evidence. Concerning the allegation that the grievant had "untruthfully" denied using abusive and inappropriate language, the Arbitrator concluded:

In a very technical sense, any factual determination that the complainant's version of events is more credible than the officer/appellant's could also be construed as a determination that the officer/appellant was untruthful. However, many arbitrators, including myself are reluctant to sustain a charge of untruthfulness based solely on the fact that an appellant denied the charges and put a city and department to its proof. I recognize the City's position that officers are required to be truthful at all times, but I am also aware that there is a distinction between making an affirmative   misrepresentation, which sends an investigation off on a 'wild goose chase' or incurs unnecessary investigative costs, and simply declining to admit the wrongdoing of which the officer is accused.

The Arbitrator noted that it was "common" for officers involved in a disciplinary suspension to respond with a blanket denial of charges, and that "[t]here may be other reasons for an officer who has been charged with serious violations to deny those charges, not the least of which is the possibility that further investigation will produce different facts than were known originally".

In light of his conclusions, Arbitrator McKee reduced the indefinite suspension to 45 days.

The San Antonio Express News reports on the case Officer wins appeal of firing; IA criticized and links to Arbitrator McKee's award here.

Plain meaning, conflicting contract terms and supervisors performing bargaining unit work

Arbitrator Linda Klibanow has issued an award in a case involving the Los Angeles Times and GCC/IBT Local 140-N.  The dispute arose from a claim that the newspaper violated its cba by having supervisors perform bargaining unit work.

The cba provided: "Section 2.2 Work Assignments. Any work that can be assigned to bargaining unit employees may also be assigned or reassigned at any time to be performed by other employees, supervisors or managers or persons outside the bargaining unit at the sole discretion of the Employer. The assignment of work or functions to bargaining unit employees shall not be construed as conferring exclusive jurisdiction over same to either the Union or members of the bargaining unit. The Employer shall not use Section 2.2 for the sole purpose of replacing bargaining unit employees and Employer shall not use Section 2.2  for the sole purpose of avoiding the 'Recall' language under Section 11.6 of this contract."

The Union claimed that it had been assured during negotiations that supervisors would perform bargaining unit work only in emergency or "oddball" situations. The employer denied that supervisors were ever assigned to perform bargaining unit work and claimed that the Union was attempting to rewrite the agreement.

In response to the Employer's argument that the plain meaning of the language of the agreement privileged its actions, Arbitrator Klibanow noted:

 If the pertinent terms of the bargaining agreement are plain and clear, there is no occasion to resort to interpretation but where plausible contentions may be made for conflicting interpretations, the contractual terms will be deemed ambiguous and the arbitrator must resort to interpretation and may consider extrinsic evidence in so doing.  Inclusion of inconsistent provisions in a contract results in contractual ambiguity, necessitating resort to principles of contract interpretation and, if available, extrinsic evidence clarifying the terms at issue.

Applying that standard to this cba, Arbitrator Klibanow found an inconsistency between the language authorizing the employer to assign work at its "sole discretion" and  the restrictions on assignment of work for "the sole purpose of replacing unit employees" or "avoiding recall". Accordingly she rejected the employer's "plain meaning" position.

Turning to the merits, the Arbitrator found the evidence established that supervisors had "relieved" press operators on their rest periods, performing unit duties during the break, relieved press operators on their meal breaks, and "pitched in" to improve efficiency.

Finding this conduct violative of the contract, Arbitrator Klibanow determined:

In the absence of supervisors relieving for breaks, "pitching in," and "helping out," at what exact point a unit employee might have been recalled, is not, answered by the record. Via efficiency and crew staffing standards, however, management has implemented a system in which supervisory performance is an integral (consistent) component of unit work. Savings on unit personnel wages is accomplished through incorporation of unit member job duties within the supervisor's job description. The arbitrator, thus, concludes from the evidentiary record that management's efficiency expectations, as communicated to the pressroom supervisory staff, has been such that supervisors could not meet those expectations without regularly performing significant pressroom crew duties themselves. Such consolidation of work responsibilities is a form of job replacement, violative of Section 2.2. [emphasis in original]

While finding the evidence insufficient to order a monetary remedy, the Arbitrator ordered the paper to "cease and desist" violating the cba.

The GCC/IBT Local 140-N's  blog links to Arbitrator Klibanow's award here.

Update: A District Court has overturned Arbitrator Klibanow's award. The court's decision is discussed 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.