Tenure charges based on hearsay insufficient, charges dismissed

Arbitrator Walt De Treux has dismissed tenure charges against a Cinnaminson, NJ teacher, concluding that the charges were based on hearsay and conduct that was addressed 16 years ago.  Arbitrator De Treux's award can be found here.

The teacher had been employed by the District since 1996. In 2002, he was the subject of a newspaper article that described his alleged relationship with a minor in 1990.

 Shortly after the report was published, the teacher was placed on administrative leave for three weeks but was returned to duty with no further discipline.

In about December of 2018, "it was reported" that he had told a student "Look at me. Let me see your pretty green eyes. You don't see them too much anymore."

The tenure charges, sworn to by the Superintendent, alleged that the teacher had made the statements alleged and that the student reported the comment made her uncomfortable.

The teacher filed a Motion to Dismiss the tenure charges, claiming that they were procedurally deficient and were based on "hearsay, rumor, and innuendo."

Arbitrator De Treux granted the Motion. On the allegations relating to the alleged comments he found:

A description of the student’s reaction (feeling “uncomfortable’) without any indication to whom, if anyone, she reported that reaction or to how the alleged comment and reaction came to the Superintendent’s attention (i.e., the number of persons the account was passed through before he learned of it) gives Respondent no opportunity to properly respond to the allegation or to rebut those unknown persons that may have reported or passed on the alleged comment and description of the student’s reaction.
For all these reasons, I find that the charges as they relate to alleged current conduct, i.e., the one alleged comment to the female student, are based on hearsay, and therefore, are procedurally deficient and must be dismissed.

Similarly he rejected the Board of Education's reliance on the events of 202. Despite the BOE's assertion that "parental and societal views have changed" Arbitrator De Treux found that the fact that some parents now demanded his removal from the classroom did not provide the BOE with a second opportunity to address conduct of which it had long been aware.

 Accordingly he ordered the dismissal of the charges and the teacher's immediate reinstatement with back pay. 

Does an "absolute cause" for discharge provision of a cba preclude a just cause analysis?

Despite a cba's inclusion of a provision containing a list of offenses which would provide "absolute cause" for termination, the Eight Circuit has upheld an arbitrator's award reinstating an employee found to have committed the listed offenses. CenterPoint Energy Resources Corp. v. Gas Workers Union, Local No. 340

The applicable cba acknowledged the Company's right to terminate employees for cause, but also included the following language:

Without excluding other causes for discharge, the following shall constitute absolute causes from which there shall be no appeal to negotiation or arbitration between the Company and the Union (except that the question of whether the employee has been guilty of the facts constituting such absolute causes shall be a negotiable controversy) namely: 

1. Use of, or being under the influence of, alcohol or non-medical drugs at any time during the work day

2. Dishonesty

3. Neglect of Duty

4. Abuse of Sick Leave.

Grievant had been dismissed "for falsifying your time sheets and neglect of duty" on four dates.  The dismissal was appealed to arbitration and was ultimately submitted to Arbitrator Richard John Miller for resolution. In his award Arbitrator Miller found grievant "guilty of dishonesty or neglect of duty on some of the days in question," but concluded that termination was too severe for the offense. Rejecting the Company's argument that he was without authority to modify the penalty once he found grievant had committed the offense in issue, the Arbitrator observed:

In reviewing the language of Article 26, it is clear that the Parties did not intend that any employee found to have committed one of the four listed offenses could be summarily discharged without regard to the factors arbitrators normally consider in determining whether there was just cause for discharge ...
To interpret Article 26 in any other manner would violate all of the basic notions of 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. 

CenterPont sought to vacate the award, and the District Court agreed. (here) In accord with the position of the Company, the District Court concluded that the Arbitrator exceeded the scope of his authority by ignoring the "plain language" of the cba by reinstating grievant  after finding he had engaged in the conduct alleged.

The Eight Circuit reversed. It noted that the Arbitrator's decision turned on his interpretation of the language of Article 26, not simply his own notions of industrial justice:

Here, the arbitrator explained at length why he interpreted the contract to allow for review of the discipline. Even if there was serious error in the analysis, the arbitrator was arguably construing the contract.

In the Court's view this distinguished this case from an earlier decision (Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562 ) in which the  Arbitrator's award simply disagreed with the Company's decision but was not premised on any interpretation of the cba allowing such a result.

 In light of its conclusion that the Arbitrator's award arose from his interpretation of the cba, the Court found the award entitled to be confirmed.

The Fifth Circuit's approach in somewhat similar cases is discussed in Fifth Circuit limits "implied finding" of just cause and More from the Fifth Circuit on "implied findings of just cause"

Tripartite arbitration and work jurisdiction disputes

Reversing the District Court, the Seventh Circuit has found that a dispute between Brock Industrial Services and two of its unions (the Carpenters and the Laborers) was a jurisdictional dispute excluded from arbitration under the Laborer's cba with Brock. Under the applicable cba, work-jurisdiction disputes were subject to a separate tripartite procedure. Brock Industrial Services, LLC v. Laborers International Union

Brock had initially assigned certain scaffolding work to employees represented by the Laborers. Shortly thereafter, however, it reassigned that work to employees represented by the Carpenters.

The Laborers filed a grievance under its own cba, and pursued that dispute through the dispute resolution procedure under the agreement. The Grievance Review Subcommittee of the National Maintenance Agreement Policy Council rejected Brock's claim that the matter was one of jurisdiction, outside the authority of the Subcommittee, and found that Brock had violated the cba when it reassigned the work to the Carpenters.

Brock sought to vacate that decision.The District Court rejected that effort, concluding that while the Subcommittee lacked authority if the grievance concerned a jurisdictional dispute, since the grievance concerned both a jurisdictional dispute and a wrongful termination claim the Subcommittee could properly decide the later dispute. The District Court's opinions can be found here and here.

Reversing, the Seventh Circuit concluded:

The gravamen of the grievance is work jurisdiction. The grievance and its supporting documents all complain that Brock improperly assigned work to the Carpenters instead of the Laborers. The Grievance Form Fact Sheet demanded that Brock "make proper assignment of work to the Laborers' Union," "reinstate the Laborers," and compensate workers for "lost wages and benefits." Indeed, the Subcommittee sustained the grievance because Brock "made a change of assignment." In other words, the Laborers complained (and the Subcommittee found) that Brock assigned work to the wrong union. That's the definition of a jurisdictional dispute. The Subcommittee therefore had no authority to arbitrate the grievance. The contract required tripartite arbitration in which the competing unions and the employer could be heard.

The Circuit distinguished earlier cases involving claims that an employer improperly subcontracted work to a employer who assigned the work to a different union, finding a subcontracting grievance "a district non-jurisdictional clam" not dependent on the identity of the employees who ultimately performed the work. Hutter v. Local 139, 862 F.2d 641 and Miron Construction Co v. International Union of Operating Engineers, Local 139, 44 F.3d 558. It found a third case (Alberici-Eby v. Local 520, International Union of Operating Engineers) "hard to reconcile" but noted in that case that the employer had failed to timely invoke the tripartite procedure.

In light of its analysis, the Court rejected the District Court's conclusion that the Laborers could pursue their bipartite grievance because several Laborers, who had been working on the project, were removed from the assignment, noting that this claim "necessarily implies that the work was misaligned" and thus "squarely on the work-jurisdiction side of the line."

It also rejected the lower court's conclusion that the Laborer's reliance on specific language in its cba provided the basis for an independent arbitration, noting:

The provision in question states: "During the existence of the [a]greement, there shall be no strikes, lockouts, work stoppages, or picketing arising out of any jurisdictional dispute. Work will continue as originally assigned, pending resolution of the dispute."
Grievances arising under this provision are indeed subject to bipartite arbitration. Like the subcontracting provisions in Hutter and Miron, a dispute under this provision can be separately arbitrated without interfering with a jurisdictional dispute. Suppose for a moment that the Laborers and the Carpenters submitted a jurisdictional dispute to tripartite arbitration, and to pressure Brock into taking its side, the Laborers Union called a strike, prompting Brock to file a grievance under Section 5. It would be completely consistent for one arbitrator to award the work assignment to the Laborers and another to sanction the Laborers for initiating a strike. Neither award would call the other into question.
But bipartite arbitration was not appropriate just because the Laborers labeled the grievance as one arising under Section 5. We look instead to the substance of the grievance. And in substance, this grievance is a work-jurisdiction dispute. As such, it was subject to tripartite arbitration, and the Subcommittee lacked arbitral authority.

Just cause for termination, but City failed to establish discipline was taken within 180 days as required. Employee reinstated

In a case that has received considerable publicity, Arbitrator Don Williams has ordered the reinstatement of a San Antonio police officer the City had dismissed for allegedly leaving a "feces sandwich" in an area where officers were attempting to move several homeless individuals. (here) Grievant had directed some of the individuals to assist in picking up trash scattered in the area. He acknowledged picking up some dog feces using some discarded bread and left it in a discarded food container. He stated he assumed one of the individuals would pick it up and dispose of it. Following an investigation, the Chief decided to terminate the officer's employment, believing that his actions had been an intentional effort to humiliate a homeless man.

Arbitrator Hays concluded that even if grievant had not intended to commit "an act to bring reproach or discredit" on himself or the Department, he had in fact done so and that termination would be reasonable. However, in light of the conflicting testimony concerning the date of the incident, he found that the City had not established that it had imposed discipline within 180 days, as required by applicable law. He did uphold a five day suspension for an unrelated incident.

Arbitrator Williams concluded:

The written statement or charging letter assessed discipline for [grievant's] actions with the fecal sandwich, failure to take action on the active warrant, and failure to report the incident with the homeless person. The Association on behalf of [grievant]argued there was a violation of procedural due process as stated in the so-called "180-day rule." All of these violations were alleged to have been committed when the incident with the homeless person occurred except the failure to take action on the active warrant. Therefore, the failure to assess discipline within the 180 days prohibits the introduction of evidence complain of the fecal sandwich incident failure to report. The only violation permitted as within the 180 days is the failure to take action with the discipline assessed as written reprimand or five (5) day temporary suspension. The indefinite suspension [i.e termination] is overturned due to the violation of the 180-days prohibition.

Arbitrator: City ordinance could not modify firefighters pension plan set forth in cba

Arbitrator Michel Ryan has upheld a grievance filed by IAFF Local 2748 against the City of Warwick, RI. (here)

 The grievance asserted that the City had unilaterally modified the firefighter's pension plan through passage of a City ordinance creating a two tier plan applicable to new hires.  Arbitrator Ryan initially rejected the City's claim that the grievance had not been filed in a timely manner, accepting the Union's explanation that it waited to file the grievance to see if the City would in fact implement the new plan. He noted further that, in any event, the grievance was timely "as a 'continuing' violation, which would have the same remedy because nothing actually changed more than 30 days before the grievance was filed."

On  the merits, he concluded that "There is really no dispute that the two-tier plan under the Amended Ordinance violates the CBA." He rejected the City's claim that, as a matter of law, the ordinance superseded the CBA, and noted further that the changes made by the ordinance had been "specifically and repeatedly" rejected during collective bargaining.

He concluded:

     As a general matter, the task of a labor arbitrator is to interpret and apply the collective bargaining agreement. The grievance-arbitration forum is not a court of general jurisdiction, and the expertise and authority of arbitrators do not extend to construing statutes and court precedent. More specifically, the parties here have agreed, in Article XII, §1, that the contractual grievance procedure "involv[es] the interpretation, application or alleged violation of the provisions of this Agreement and/or the rules and regulations of the Fire Department." This language does not include external law.
     Since the two-tier plan under the Amended Ordinance violates the CBA, we find for the Union on the merits issue. As a remedy, we will order the City to cease any enforcement or implementation of that plan, to comply with the terms Article XIV, and to make whole all affected members of the bargaining unit.

The City representative on the panel dissented.

Sixth Circuit refuses to vacate award finding subcontracted drivers and temporary employees were "one in the same" under language in a cba

Faced with a need for additional drivers, Economy Linen and Towel Service of Zanesville entered into a service agreement with ProDrivers for that Company to provide certified drivers on a contract basis. The Union representing Economy's drivers (Teamsters Local 637) filed a grievance challenging that action. The Unions asserted that the ProDrivers were being compensated at a rate higher than full time drivers in violation of the cba. The Company denied the grievance, asserting that it had contracted the work to ProDrivers as allowed by the cba, and it had no knowledge or control over how much ProDrivers paid its drivers. The dispute was unresolved in the grievance procedure and was ultimately submitted to Arbitrator Lawrence Roberts for decision.

In his award, Arbitrator Roberts saw the dispute as being resolved by the "unambiguous language" of the agreement, specifically the definition of temporary "on call" employees.

Sustaining the grievance, the Arbitrator rejected the Company's reliance on its contractual right to subcontract. He found controlling the contractual provision that "In no event will a temporary or part time employee be hired at or given a higher rate than a full time employee." He noted that while the term "full time employee" was defined in the cba, "[t]here is no language found within the same Agreement specifically defining either a temporary or part-time employee in a similar context."

 Concerning the Employer's right to subcontract, he found that right "unimpeded until one reaches the Hours of Work and Overtime provision." There temporary ("on-call") employees were defined as "individuals who are on call to work when regular full-time employees are not available to work or to augment the work force in peak periods." Arbitrator Roberts found this language "precisely defined" the ProDrivers in  this case. He concluded:

The Parties clearly agreed to allow subcontracting, however, failed to specifically draw a distinction between a subcontracted employee and a temporary employee. The negotiators could have easily done so. However, the absence of any language in that regard makes it clear, at the face value of the Agreement, that a subcontract and a temporary employee are in fact, one in the same. And Article 6.08 is unambiguous, in that, it even leads off with the phrase "in no event." And in my view, that particular phraseology is definitive and without exception.

The Arbitrator also found that, while not necessary to his conclusion, the evidence suggested that Economy and ProDrivers were joint employers.

In line with his conclusion, the Arbitrator ordered the Company to pay to unit employees the difference between their hourly rate and the twenty dollar per hour rate paid to the contract drivers.

Economy sought unsuccessfully in the District Court  to vacate the award. (here) The Court found no basis to set aside the award. There was no allegation fraud and no claim that the issue wasn't properly before the arbitrator. Contrary to the Company's claim that the Arbitrator ignored the "unqualified" right to subcontract, the Court concluded that whether or not "correct," the Arbitrator's award was simply an interpretation of the relationship between the management rights provision and the temporary employee language. It found that, at its core, the Company's claim was simply a disagreement with the Arbitrator's interpretation of the Agreement.

The Company appealed, and the Sixth Circuit affirmed. Economy Linen and Towel Service, Inc. v. Teamsters Local 637. It noted the lenient standard of review of arbitration awards and, like the District Court, found that the award simply interpreted the interplay between several provisions of the Agreement. The Company's claim was simply one of "interpretive error" and was beyond the reach of the Court's review.

Concurring, Judge Batchelder wrote:

I write separately to say that I concur only because I am bound by law to do so. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 529 (2019) ("We have held that a court may not rule on the potential merits of the underlying claim that is assigned by contract to an arbitrator, even if [the arbitrator's decision] appears to the court to be frivolous." (quotation marks omitted)).

At best, in my view, the arbitrator's interpretation of the provisions of the CBA at issue here is not totally implausible. That it is clearly wrong is not enough.

Note: Several days after this decision, a different panel of the Sixth Circuit reversed a decision confirming an award of Arbitrator Michael Long, finding that the Arbitrator's remedy for a claimed change in retirees' health care benefits didn't "construe the contract" but improperly relied on a plan other than the one set forth in the cba. The dissenting judge observed  "This case illustrates the difficulty of according appropriate deference to an arbitrator's decision. It is easy enough to say that we must affirm an arbitrator's decision so long as it was not "so untethered from the agreement that it casts doubt on whether he was engaged in interpretation." ... Perhaps it is sometimes less easy to apply this standard, but apply it we must. Unfortunately the majority did not do so here. Rather, it substitutes its judgment where the arbitrator's ought to remain." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. TRW Automotive U.S. LLC.

Quick Hits - Use of force, lack of candor during an investigation, and a public policy challenge to an officer's reinstatement

Termination for excessive use of force converted to a suspension


Grievant, a Chillicothe, OH police officer, had been dismissed for allegedly hitting a prisoner, failing to turn on his body camera, and using inappropriate language.

Grievant had stopped a vehicle for failure to use a turn signal. After running the license plate, he learned there was an outstanding warrant for the vehicle's owner. The driver ran off and was subsequently arrested by other officers. Grievant went to the jail to have him sign the citation for failure to use a turn signal. The driver refused to sign, and after being informed that refusal could lead to an obstruction charge, refused again. Grievant responded "wrong fucking answer" and began to leave. The driver continued to yell at grievant, calling him " a fat black bastard." Grievant turned around, walked toward the driver and became "very demonstrative" toward the driver, using his hands and pointing his finger. The driver continued his verbal harassment and at one point video recorded by one of the jail guards shows grievant making a fist and then lowering his arm . Grievant left the jail and driver claimed grievant had assaulted him.

An internal investigation was conducted which concluded that grievant had struck the driver, had failed to de-escalate the situation, and had been dishonest during the investigation when he denied hitting the driver. Grievant's employment was terminated, and the dispute submitted to Arbitrator Jerry Sellman for resolution.

Arbitrator Sellman found that the evidence uncertain whether grievant actually struck the driver, but concluded that he did "graze" him. He noted that improper use of force "cannot ever be tolerated" by the Department:

Police officers are trained to handle abuse and maintain emotional stability. Police Officers must refrain from using coarse, violent, profane, or insolent language and they must avoid conduct that brings discredit or disgrace upon the Division of Police.

The Arbitrator found that grievant had violated these principles and that "[e]ven though he was racially provoked, his conduct was unjustified." He further found, however, that termination was too severe a penalty in this case and that a lesser suspension was appropriate:

Because he had never been disciplined for this type of behavior before and was a long-term, eighteen year employee of the Police Department, and also in light of the disciplinary treatment given other Police Officers for improper use of force, termination is unreasonable and arbitrary for the offenses committed under the circumstances of this case. Because the conduct of the Grievant was serious and involved violations of several Departmental Rules and Policies, a fifteen-day suspension is warranted.

Arbitrator Sellman's award can be found here. The City has appealed the award.  City has appealed arbitrator report reinstating Chillicothe Officer Reggie Netter

Grievant's "insubordinate refusal" to respond accurately and completely during internal investigation improper, but termination too severe

Arbitrator Don B. Hays has converted the indefinite suspension (termination) of a Port Arthur, Texas police officer into a lengthy suspension.

The Port Arthur PD conducted an internal investigation concerning an allegation that a number of officers were engaging in

misconduct, including allegations that certain officers had "double dipped" i.e. performed private duty vehicle escorts while they were on the clock. During the course of the investigation, grievant was interviewed about his involvement with the off duty escort services, as well as with claims that he improperly accessed law enforcement data bases for non law enforcement purposes and assisted in presenting a false affidavit of probable cause to support getting access to cell phone records for non law enforcement reasons. The Department concluded that grievant had been intentionally "untruthful" in those interviews, and was uncooperative and evasive during the interviews. It terminated his employment.

Arbitrator Hays found that grievant had engaged in "multiple insubordinate acts and omissions." He found:

Judging from the “totality of [Grievant's] testimony," as accurately captured by the official court reporter, we cannot reasonably conclude that [Grievant] did not deliberately take refuge in what we have come to identify as the police officer's “code of silence.” However, in choosing to do so [Grievant] periodically engaged in what can only be described as a insubordinate refusal to testify completely and truthfully on several pivotal subjects, such refusal constituted, in our judgment, a serious violation of department rules and represent a patently obvious deliberate refusal to cooperate with the department's chosen investigator. All of which in our judgement was clearly and willfully intended to and did in fact disrupt and frustrate the department's official pre-discipline investigation -to us a clear example of actionable insubordinate conduct.

Nevertheless, he found termination "patently excessive." Recognizing the need to make a statement "regarding the continuing need for more honest, professional and dedicated approach among all other PAPD officers" the Arbitrator converted the termination to a suspension without back pay and noted it should be considered a "Final and unconditional (last chance) warning."

Arbitrator Hays' award can be found here.

Court rejects public policy challenge to officer's reinstatement


Grievant was alleged to have installed audio-video surveillance devices in the residence he shared with his soon to be ex-wife. One camera was installed in the kitchen and two in the master bedroom. He was alleged to have continued to access the devices after he moved out. He claimed to have installed and monitored the devices to protect himself against false allegations and to protect his children. The Department became aware of the devices and began an investigation. His employment was terminated by the Aurora, IL police department after the Chief concluded that grievant had committed a Class 4 felony by eavesdropping on his wife and that his actions were a "willful and wanton disregard for the law that [he] himself has taken an oath to uphold. "

An arbitrator reversed the termination and decided instead that a one year suspension was appropriate. The City sought to vacate the award as contrary to public policy, and the trial court agreed. It noted particularly that the arbitrator had made no finding as to whether grievant was likely to refrain from similar conduct in the future. The Union appealed, and the Appellate Court of Illinois has reversed, and confirmed the arbitrator's award:

We conclude that the arbitrator's award did not violate public policy. There was no contractual provision mandating termination of police officers for off-duty misconduct, and the arbitrator, in our view, made a rational finding that Wagner was amenable to discipline. ... The CBA contemplates various forms of discipline, specifically noting removal, suspension, and discharge as possible measures for findings of cause. The arbitrator noted that the remedy had to be severe enough that [Grievant] and the community knew that his behavior was not acceptable, but that it also had to take into account the circumstances. Specifically, the arbitrator noted [Grievant's] long work history, his good work performance, and the fact that he was going through "a difficult divorce and his emotions may have clouded his judgment." The arbitrator specifically found that termination would be too harsh and, instead, ordered a one-year suspension, which would not be considered creditable service for department seniority or pension purposes. As this summary of the arbitrator's findings shows, he fashioned an award that considered the seriousness of [Grievant's] acts but also the mitigating circumstances of the case, such as [his] work history and the divorce. "[A]n employee's amenability to discipline is a factual determination which cannot be questioned or rejected by a reviewing court."

The Court also concluded that the arbitrator had at least implicitly found that grievant was unlikely to re-offend. The City of Aurora v. The Association of Professional Police Officers