Court upholds reinstatement of police office denied license to carry a weapon.

The Massachusetts Appeals Court has affirmed the enforcement of the award of Arbitrator Roberta Golick reinstating a police officer terminated after the Police Chief for the City of Worcester, Mass. refused to issue him a license to carry a weapon. Grievant had initially been terminated following an altercation at his home in which he pointed his weapon at three teenagers. While the incident was being investigated, the Chief purported to suspend grievant's license to carry. Ultimately the Chief denied grievant a license, deeming him an "unsuitable person."

 Arbitrator Richard Higgins sustained a grievance over the termination and ordered the grievant's reinstatement. After that award, the Chief again terminated the employment of grievant, in part because he did not possess a license to carry. The Union again grieved, and Arbitrator Golick ordered his reinstatement. These two awards are discussed here.

The city sought to set aside Arbitrator Golick's award, but their efforts were rejected by the superior court. The Appeals Court has now affirmed.

The Court summarized the award of Arbitrator Golick as follows:

The arbitrator concluded that `[j]ust cause for dismissal is not established by the unadorned fact that a chief exercises his discretion to refuse to issue an employee a firearm,' because, if that were all that was needed to dismiss a police officer, the officer's `contractual right not to be discharged except for just cause is meaningless.' The arbitrator further concluded that the police chief `may be free to exercise his claimed authority to refuse to permit Rawlston to carry a weapon. But in the realm of just cause, which is the contractual standard for dismissal, the City's reliance on an alleged `disqualification' that the Chief himself decided to impose so as to prevent Rawlston from reinstatement was capricious and does not meet the test of contractual fairness.' 

Like the Superior Court, the Appeals Court found no public policy issue warranting setting the award aside. As it had in connection with the appeal of the initial decision of Arbitrator Higgins (O'Brien v. New England Police Benevolent Assn., Local 911), the Court found "the factual and legal underpinnings necessary to the application of the public policy exception are lacking."

The Court's opinion in City of Worcester v. New England Police Benevolent Assn. Local 911 can be found here.

Can an arbitrator disregard a last chance agreement?

Deciding what it describes as a case involving "unusual labor arbitration issues," the Eighth Circuit  overturns a district court and substantially confirms an arbitrator's award.

Grievant was employed by Associated Electric Cooperative, Inc. After being selected for a random drug test, grievant informed the Company that the test would show a positive result. He explained that he had smoked marijuana with family members while on leave to attend his brother's funeral. Grievant declined union representation, signed a standard form last chance agreement, and was suspended to undergo drug dependency treatment. When the test results were returned a little more than a week later, however, they were negative. Nevertheless, the Company kept grievant on the last chance agreement and continued his suspension and treatment. During his treatment grievant tested positive on two occasions and the Company terminated his employment prior to his return to work.

The Union (IBEW Local No. 53) grieved the termination and submitted the dispute to arbitration. The arbitrator upheld the grievance. He determined that the lca was "unconscionable" since the initial negative drug test established grievant had not broken any work rule, and that the continuation of the suspension after learning of the negative results was "indefensible."  He ordered the Company to reinstate grievant with back pay.

The Company sought to set side the award, and, in a decision discussed here, the district court determined that the arbitrator had exceeded his authority by disregarding the last chance agreement. The Union appealed, and the Eighth Circuit has reversed.

The Circuit court described the issue before it as:

 When an employer and employee enter into a last chance agreement ("LCA") enforcing the employer's drug policy without the union's participation, the employer subsequently invokes the LCA provision mandating discharge in the event of a violation, and the union claims this discipline was contrary to the "just cause" limitation in the grievance and arbitration provisions of the collective bargaining agreement ("CBA"), what is the appropriate standard of review (i) for the arbitrator, and (ii) for this court in reviewing the arbitrator's award?

While observing that it agreed with the district court's determination that the last chance agreement was not unconscionable when initially entered into, the Court concluded that the district court erred by reading the Court's previous decision in Coca-Cola Bottling Co. v. Teamsters Local No. 688 too broadly. In the Coca-Cola case, the court overturned an arbitrator who had disregarded a last chance agreement entered into between the company and union in resolution of a grievance. Here, however, the Union was not a party to the agreement and the lca itself was premised on the "mutual mistake" that grievant had violated the drug policy. In reviewing the instant grievance, the arbitrator "correctly focused" his decision on the just cause issue. According to the Court:

This focus did not permit the arbitrator to ignore the LCA, but it did mean he was not contractually bound to apply the LCA's mandatory termination clause if the evidence persuaded him there was not just cause to do so.

Noting the narrow scope of review, the Court concluded that the arbitrator decision on the termination was within his authority and his award should be confirmed.

The concurring opinion agreed that the award should be confirmed, but would not reach as far as it believed the majority had in determining that the absence of the union's participation in the lca rendered it unenforceable. 

The Court's opinion in Associated Electric Cooperative, Inc. v. International Brotherhood of Electrical Workers, Local No. 53, can be found here.

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.

Incorporation of statute into cba sufficient to trigger Penn Plaza

In its decision in 14 Penn Plaza v. Pyett, the Supreme Court held that a union may agree in a cba that an employee's statutory claims are subject exclusively to the contract's grievance procedure, and that the employee may not pursue the claim in court. Such an agreement, however, must be evidenced by clear and unmistakable language demonstrating such an intent.

 Subsequent cases interpreting Penn Plaza have held that general non discrimination language is insufficient to prevent an employee from pursuing litigation over a statutory claim. In Ibarra v. United Parcel Service the Fifth Circuit determined that for a cba to bar litigation, the cba must "at the very least, identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims." In its recent decision in Gilbert v. Donohoe, the Fifth Circuit has addressed a cba that it finds "falls between" the language discussed in Penn Plaza, and that in subsequent cases finding no waiver. 

Plaintiff Gilbert sought to litigate claims that the USPS had violated her rights under the FMLA, and the Rehabilitation Act. Reversing, in part, the District Court's decision, the Fifth Circuit has determined that the contract in issue precluded litigation of the Rehabilitation Act claims, but not the FMLA ones.

The contract provided for a dispute resolution procedure culminating in binding arbitration. Separately the cba provided "consistent with the other provisions of this Agreement, there shall be no unlawful discrimination against handicapped, as prohibited by the Rehabilitation Act." The contract also incorporated the Employee and Labor Relations Manual (ELM) which, according to its terms, "provides policies to comply with the [FMLA]."

Noting that the contract could be said to reference both statutes, the Court found the nature of the references distinct, resulting in differing results. 

...the ways in which the agreement identifies the respective statutes are distinct, and this difference guides our resolution of this case. Section 2.01(B) of the CBA specifically provides that it is incorporating into the agreement the prohibition of discrimination against handicapped employees contained in the Rehabilitation Act. It thus complies with the dicta of both Ibarra and Wright that the CBA “identify the specific statutes the agreement purports to incorporate.” 26 Combined with Article 15, this provision makes it clear and unmistakable that the Rehabilitation Act is part of the CBA and subject to the same grievance procedures. By contrast, the ELM only provides policies to comply with the FMLA. It does not purport to make the FMLA a part of the agreement. As our sister circuits have recognized, references to statutes that fall short of incorporation are insufficiently “clear and unmistakable” to bar access to federal court. 27 There is no reason to treat this reference any differently. Accordingly, we hold that, while the CBA requires Gilbert to pursue her Rehabilitation Act claims through the specified grievance and arbitration procedures, its references to the FMLA are not sufficiently clear and unmistakable to deprive the district court of subject matter jurisdiction over claims arising under that statute.

The Court therefore affirmed the dismissal of plaintiff's Rehabilitation Act claims, but reversed the dismissal of the claims under the FMLA.

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.

CBA's non-discrimination clause compels County to recognize out of state same sex marriage

The cba between the Ohio Public Utilities Commission and the Ohio Civil Service Employees Association provides for bereavement leave in a variety of circumstances. One of those circumstances was for the death of "mother-in-law" or "father-in-law". Two unit employees, each of whom was married in an out of state ceremony to a same sex spouse, sought leave under this provision. The County denied the requests, maintaining that because Ohio law limited  marriage to unions between a man and a woman, same sex partners were not "spouses", and therefore the partner's parent did not qualify as an in law. The Union grieved the denial, arguing that federal law required the state to treat grievants' marriage was it would that of opposite sex couples. In particular, the Union relied on language in the cba's non-discrimination provision that "Neither the Employer nor the Union shall discriminate in a way inconsistent with the laws of the United States or the State of Ohio on the basis of ... sexual orientation ...." It also argued that because the cba used the terms spouse as well as significant other, those terms should be interpreted to be interchangeable.

Arbitrator Sarah R Cole has issued an award, relying on the Supreme Court's decision in United States v. Windsor, upholding the Union's grievance. Noting the non-discrimination provision's reference to federal law, Arbitrator Cole concluded:

Since Windsor was decided, every federal district court considering the impact of Windsor on state defense of marriage acts have issued opinions supporting the rights of same-sex partners to have their valid out-of-state marriages recognized for rights and benefits purposes. ... Thus, current federal law requires the State of Ohio to recognize out-of-state marriages or civil unions. ...
As a result, the Grievants' partners must be considered "spouses" for purposes of applying the CBA's bereavement leave provisions.

In light of her decision on this point, the Arbitrator found it unnecessary to consider the Union's alternate argument.


OCSEA links to Arbitrator Cole's Award (No. 1129)  here.

Sixth Circuit: Claimed breach of settlement agreement must be pursued through grievance process, not litigation

UPS and Teamsters Local 480 entered into a settlement agreement resolving a dispute about the assignment of work to employees in the category of "shifters". Thereafter, the Union alleged that UPS had failed to abide by the settlement and brought suit in District Court to enforce the agreement. UPS moved to dismiss the complaint, arguing that the dispute must first be pursued through the parties' grievance and arbitration procedures. The District Court agreed with UPS and dismissed the complaint. A panel of the Sixth Circuit, with one dissent, has now affirmed that decision.

Pointing to the broad definition of "grievance" contained in the parties' cba, the Court concluded that:

The Union and UPS entered into a CBA that provides that "any controversy, complaint, misunderstanding or dispute" that concerns "interpretation, application or observance" of the CBA "shall be handled" in accordance with the CBA's grievance procedures. The parties agree that UPS's alleged breach of the Settlement Agreement constitutes a violation of the CBA. Accordingly, the Union must use the CBA's grievance procedure before seeking judicial relief. Because the Union failed to state a claim under the CBA, we AFFIRM the district court's judgment dismissing the complaint.

The dissent would have overturned the lower court's decision, based on its conclusion that whether UPS breached the settlement agreement did not constitute a dispute as to the interpretation, application or observance of the cba.

The Court's decision can be found here.