State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer

Grievant began his employment with the Marco Island, FL Police Department in October 2006. He was hired 18 months after having been terminated by the Collier County Sheriff's Office after it was claimed he had given misleading testimony during an investigation.

In November 2010 grievant was dispatched to a DUI. He testified in connection with that case at an administrative hearing. In February 2011 the presiding judge at that proceeding received a report of an allegation by another bargaining unit employee that grievant had lied during the hearing. The allegation was reported to the City and a meeting was held between the Police Chief and a representative of the State Attorney Office (SAO). No action was taken by the City, but the SAO independently reviewed the matter. In November 2013 the SAO sent a letter to the Police Chief advising that because of the allegation of untruthfulness during the 2010 hearing, and grievant's earlier dismissal from the Colier County Sheriff's Office, grievant would no longer be used as a witness in the prosecution of criminal cases. Six months later, an Internal Affair's investigation was opened relating to the alleged untruthful testimony in 2010, but the investigation remained uncompleted when the assigned investigator left the Department. 

In February 2015 the SAO sent a second letter to the Department, restating its position that it would not use grievant in the prosecution of criminal cases. A new investigator was assigned to the still open Internal Affairs investigation, and in April 2016 a report was issued sustaining the allegation of untruthfulness in the 2010 testimony. However, because of the length of time that had elapsed, grievant could not be disciplined.  Grievant continued his employment but the SAO declined to prosecute on almost 80% of the cases grievant handled.

In January 2019 a new City Manager was appointed, and, after an article (State attorney's office declined to prosecute multiple Marco Island criminal charges last month due to 'Brady cop') appeared in a local newspaper in February 2019,  the City advised grievant that he would be removed from his position as a police officer. The City  noted the termination was premised solely on grievant's inability to testify, and not on either the allegations raised in connection with his employment by the Collier County Sheriff's Office or the results on the Department's Internal Affairs investigation. It held out the possibility of transfer to a civilian position if one existed, an offer grievant declined.

A grievance was filed, and ultimately submitted to Arbitrator Gerard Fowler for resolution.

Arbitrator Fowler rejected the City's reliance on the management rights provisions of the cba, and its claim that the proposed removal was not a disciplinary action.  He observed:

Whether a party chooses to refer to a grievant's removal as a termination rather than a discharge is a distinction without a difference. Any union member covered by a collective bargaining agreement with a just cause provision must be provided with just cause if the termination is to stand. Accordingly, the Arbitrator finds that based upon all of the evidence and testimony before him Grievant was discharged as that term is set forth in arbitral precedents. Therefore, this arbitration centers on whether the Employer properly discharged Grievant.

 Turning to the merits, Arbitrator Fowler concluded that the City's reliance of the refusal of the SAO to use grievant as a witness, in the absence of any evidence that he had in fact engaged in any dishonest behavior, was insufficient to support the termination. He found:

The record clearly shows the City never attempted to prove or present any proof regarding Grievant's dishonesty. Grievant did present testimony indicating that he did not misrepresent any fact while testifying in 2010 or any other time. Clearly the only basis to terminate Grievant from his position is based upon the letter from the State Attorney. This letter is unsupported by evidence or details of any investigation on the part of the SAO. There is no judicial determination on the record indicating that Grievant has ever been dishonest in his testimony 

Accordingly, the testimony and evidence in this case failed to establish just cause to discharge grievant. The grievance must be sustained. Grievant is entitled to be reinstated to his position of police officer and made whole for all of the losses he suffered as a result of his discharge by the City, and it shall be so ordered.

Arbitrator Fowler's award in City of Marco Island, Florida and Gulf Coast Florida Police Benevolent Association, Inc. can be found here.

Similar issues are addressed in Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination and Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness

Court rejects Nurses Association request for reverse Boys Market injunction requiring hospital to provide ppe and other Covid related safety measures

The District Court for the Southern District of New York rejected the request of the New York State Nurses Association for a reverse Boys Market injunction seeking to compel Montefiore Medical Center to take certain steps to mitigate the risk that nurses might contract Covid-19 while the Union's grievance was pending. The New York State Nurses Association v. Montefiore Medical Center.

The Union sought, inter alia, to have the Medical Center provide PPE, space to don and doff such equipment, and "adequate" coronavirus testing. A copy of the Union's complaint for injuntive relief is available here.

Noting how narrow the reverse Boys Market exception is to the Norris LaGuardia limitation on injunctions in labor disputes, the Court found it was without jurisdiction to grant the requested injunction. It agreed with the position of the Medical Center that the requested injunction "does not seek to preserve the status quo. Instead, it 'seeks to create a new status quo that gives the Union everything (and more) it requests in the grievance.' "

While denying the request, the Court encouraged the parties to attempt to resolve the dispute quickly:

The Court does so with a plea to both sides to continue their efforts in good faith to reach an amicable resolution of their disputes. Both sides presumably share the ultimate goal of maximizing protections for healthcare workers on the front lines of the battle against a vicious disease without compromising patient care. And the parties are plainly in a better position than either the Court or an arbitrator to find the best ways to achieve that goal despite limited resources and ever changing circumstances. Failing an amicable resolution, the Court hopes that the parties can and will expedite the arbitration proceedings. This Court may lack authority to address NYSNA's concerns, but to the extent these concerns are valid, it is critical that they be addressed as swiftly as possible. Lives may hang in the balance, and the NYSNA nurses deserve as much. 

CA2: Reinstatement without back pay for "first time" sexual harasser not contrary to public policy

In a Summary Order, the Second Circuit has affirmed the decision of the District Court (here) refusing to vacate an Award of Arbitrator Carmelo Gianino. Arbitrator Gianino had ordered the reinstatement, without backpay, of grievant, a security guard, who had been dismissed "for creating a hostile work environment when he made sexualized comments about a female staff member's wardrobe and appearance." Barnard College v. Transport Workers Union of America, AFL-CIO Local 264.

Grievant, who was also the Local Union President, was representing another employee in a disciplinary hearing when he claimed he was unable to question the witness because her attire made him uncomfortable. When pressed for the reason for his discomfort he replied that her blouse was cut too low. 

The Arbitrator found that Grievant's conduct warranted discipline, but that termination was too severe. He ordered grievant's reinstatement without backpay and with loss of seniority credit for the time he was off. 

The College sought to vacate the Award, asserting that it was contrary to public policy, to law, and  beyond the authority of the Arbitrator. The District Court rejected all of these claims, and confirmed the award. 

The Second Circuit affirmed. It found no violation of public policy, noting:

It is certainly the case, as we have long noted, that "[t]he public policy against sexual harassment in the work place is well-recognized." Newsday, Inc. v. Long Island Typographical Union, No. 915, CWA, AFL-CIO, 915 F.2d 840, 844 (2d Cir. 1990). But we have only found that this public policy counsels against deference to an arbitral award when an arbitrator reinstates a terminated individual who had engaged in multiple acts of sexual harassment—including acts that had already served as the basis of prior arbitral rulings against that individual. Id. at 845. In such instances, reinstatement would indeed violate public policy, and vacatur of the arbitral award would be justified.
In the present case, however, [grievant] was being punished for only a single act, and public policy does not counsel as strongly against deference to the arbitral award

The Court also observed that, as a result of the Award, grievant lost his claim for approximately $80,000.00 in back pay, and that such a punishment was "consistent" with a public policy of eradicating sexual harassment from the workplace. 

Finding no merit in any of the College's arguments, the Court affirmed the judgment of the District Court. 

Does an award of "make whole" relief, without more, imply an offset of interim earnings?

That was the question presented to the District Court in United Electrical, Radio & Machine Workers of America and Local 506 v. General Electric Company.

GE dismissed an employee for unacceptable attendance. That action was grieved and ultimately submitted to arbitration. The parties stipulated the issue as "Was the discharge of [grievant] for just cause? If not, what should be the remedy?"

Arbitrator Christopher Miles issued an award finding the termination to have been made without just cause. He sustained the grievance, and ordered that grievant be reinstated and "made whole for lost wages and benefits."

The Company reinstated grievant, and asked the Union for information on any earnings of grievant during his time off. The Union declined to produce the information, stating that they believed the award was final and binding and noting that the Company had not raised the issue of the appropriate remedy or mitigation of back pay during the hearing. 

The Company requested the Arbitrator to participate in a conference call, but the Union opposed the request. Arbitrator Miles was unwilling to participate in such a call without the agreement of both parties, stating that since he had not retained jurisdiction both parties would have to agree to his continuing involvement.

The union filed a complaint seeking to confirm the award, requesting an order compelling the Company to comply with the Award, including the "make whole" remedy.

The District Court for the Eastern District of Pennsylvania granted the union's request. The Court concluded that the decision was not ambiguous. It agreed with the Union's position that the "clear meaning" of the Award "does not provide for any offset or mitigation." The Court observed that the Award itself contained no language that the make whole remedy was subject to offset or mitigation, and that, while the absence of such language was not dispositive, "the silence of the Arbitration Award on this matter speaks volumes."

The Court also relied on the Arbitrator's failure to retain jurisdiction as suggesting that the Award was not intended to create issues that would need to be resolved after the fact, as well as the absence of any language in the cba providing for offset. The Court noted further:

Moreover, GE did not raise the issue of offset with Arbitrator Miles at all, despite the fact that the appropriate remedy was one of the issues the arbitrator was deciding. Regardless of whether GE’s decision not to raise the issue at the hearing or in its post-hearing brief constituted a “waiver” of its right to do so, it does suggest that offset and mitigation were not issues GE deemed to be relevant.

While recognizing that there was no "binding" Third Circuit precedent on the question of whether the absence of language on offsets or mitigation unambiguously establishes that none were intended, it found "persuasive" authority from several other circuits demonstrating that "as a general matter, the absence of language regarding offsets or mitigation unsurprisingly means that none were intended."

The Court also rejected the Company's argument that "there is a universal principle, at least in labor and employment law, that a make whole remedy is not intended to make the aggrieved party more than whole, and therefore that interim outside income must be deducted from the award." It noted that the cases relied on by the Company involved employment discrimination statutes, where the courts were dealing with language specific to those statutes, finding:

The cases do not establish that offsets and mitigation are legally required in all labor and employment cases and in no way provide a basis for how to interpret the meaning of a make whole remedy that is silent as to the matter.

The Court concluded:

Requiring that backpay be offset, as GE asserts, is not uncommon, but that is not what happened here.
Accordingly, the Court will enforce the plain language of the Arbitration Award that provides simply that [grievant] be made whole for lost wages and benefits.

A similar issue is discussed in Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator

Two recent cases on challenges to an arbitrator's supplemental award - AAA Rule 40, functus officio, and punitive damages

In Verizon Pennsylvania LLC v. Communications Workers of America, Local 1300, the District Court for the Eastern District of Pennsylvania vacated the "Supplemental Award on the Remedy" of Arbitrator Barbara Zausner.

Arbitrator Zausner, chairing a three person panel, had granted a grievance challenging the Company's implementation of a program to have certain set top boxes related to its FIOS TV service delivered to customers by common carrier. Previously the boxes were either carried to the customer location by bargaining unit technicians or picked up by the customer for self installation. In sustaining (here) the original grievance, the panel (with the Company representative dissenting) concluded:

We conclude that mailing set top boxes is different from the customer picking up the set top box from a company location because the customer is not a contractor. But employees of other employers who do the delivery work as part of their jobs, are getting the advantage of work that is protected by Section 17.01. Therefore, the Company must cease and desist from mailing the product to customers when the Company is to provide the installation or maintenance on a set top box.

The panel referred the question of what the monetary remedy should be to the parties for resolution, retaining jurisdiction should the parties be unable to agree. The parties were in fact unable to agree, and the matter was returned to the panel.

In a Supplemental Award (here) a majority of the panel determined, inter alia:

A monetary remedy in this matter is directed to compensate these employees and to deter future violations of Article 17.01. The remedy requested consists of: the number of set top box shipments and deliveries to Pennsylvania customers (other than by customers themselves, and including deliveries made by Assistant Technicians), from the date of the grievance until the Company returns the disputed work to the bargaining unit Services Technicians, at the straight time rate of two hours per delivery at the top step wage rate. ...

Verizon filed suit to vacate both the merits award and the Supplemental Award on the Remedy, and the Union filed to confirm both.

The Court confirmed the merits award, but vacated the Supplemental Award. While the court rejected several of the Company's challenges to the Supplemental Award, it found other elements conflicted with, or went beyond, the merits Award.

The Court agreed with the Company that those elements of the remedial order were barred by the doctrine of "functus officio," a doctrine the Court described as "a shorthand term for a common-law doctrine barring an arbitrator from revisiting the merits of an award once it has issued." It concluded that

A conflict exists between the decisions: the Merits Award explicitly held that customer installation did not violate the CBA while the Remedy Award barred such installation unless the customer personally transported the set top box to her home. By its terms, the Merits Award permitted delivery by a Union technician with installation by the customer, while the Remedy Award foreclosed that option. Accordingly, the injunction barring any customer self-installation can only stand if one of the exceptions to functus officio applies. [footnote omitted]

Concluding that no such exception existed, the Court determined that "the Remedy Award's order regarding customer self-installation was improper and must be vacated." The Court similarly agreed with the Company "that the functus officio doctrine barred the Panel from including installation time from all 1,373,486 installations in the remedy because, in the Merits Award, the Panel held that customer self-installation did not violate the CBA."

Unrelated to the functus officio issue, the Court also concluded that the monetary award in the Supplemental Award constituted an improper award of punitive damages, something not provided for in the CBA. It noted that none of the grievants lost income since they had all been fully employed, and that the Award explicitly provided that the award's purpose was "to deter future violations ...."

The Court remanded the dispute to the arbitration panel "for calculation of a remedy consistent with this opinion."

A second case, Communications Workers of America v. Southwestern Bell Telephone Company, also involves the impact of an arbitrator's supplemental award. In that case, Arbitrator Samuel J. Nicholas initially upheld a grievance that claimed the Company violated its CBA when it assigned certain work to employees in a lower paid title in the same bargaining unit. Arbitrator Nicholas concluded that

no language in the Agreement restricts or forbids Management from making said changes. Thus, on its face, the Union's assertion that Management's actions violated the provisional language of the Settlement Agreement falls short.

However, he found that Union Exhibit 4 supported the Union's position that the assignment of duties could not be made without negotiations. In light of that Exhibit he concluded:

Your Arbitrator is quite aware that he is forced to balance the given practice with Management's right to operate in a manner that supports the mission of the Company. Absent clear practice that the parties have chosen to abide by and despite the nature of the proposed changes and the additional requirement associated with the proposed changes, I would be inclined to find that no violation of the Agreement occurred. However, in light of the aforementioned practice, and the manner in which it has been observed in the past, your Arbitrator holds that Company's decision to unilaterally apply new job duties without consulting the bargaining unit marked a violation of the long-standing practice that the parties share.

Shortly after the award issued, the Company filed a Request for Reconsideration, pointing out that Union Exhibit 4, which had been admitted over the Company's objection, was the product of, and related to, a different bargaining unit. The Union opposed the request, arguing that while Rule 40 of the American Arbitration Association Voluntary Labor Arbitration Rules (incorporated into the parties' cba) allowed an arbitrator to correct "clerical, typographical, technical, or computational errors" it prohibited an arbitrator from redetermining the merits of a claim already decided.

Arbitrator Nicholas found that he had committed a "technical error" in his reliance on Union Exhibit 4 and was "obliged to correct the noted mistake." He found no violation of Rule 40 in this action. On the merits he found that, as he had referenced in his earlier award, in the absence of applicability of Union Exhibit 4 he would find no violation of the cba. Accordingly he rescinded his earlier award "in favor of a ruling that no contractual violation occurred" and denied the grievance.

The Union filed suit, challenging the second award as contrary to the finality language of the cba and the provisions of AAA Rule 40, and seeking to confirm the original award. The District Court rejected the Union's challenge in an opinion addressed in Res judicata, CWA and Southwestern Bell, and a question of timeliness of a Loudermill hearing.

The Fifth Circuit has affirmed the District Court's decision. Communications Workers of America, AFL-CIO v. Southwestern Bell Telephone Company

The Court concluded that the Arbitrator's interpretation of AAA Rule 40 was "arguable" and within his authority. In light of the deference accorded to arbitration awards, it was entitled to be confirmed.

Addressing the functus officio issue, it noted further:

CWA argues that the arbitrator's actions ignored the "finality" provision in the parties' CBA and the common law doctrine of functus officio. This argument misapprehends the purpose of Rule 40. While it is true that the doctrine of functus officio "bars [the] arbitrator from revisiting the merits of an award once the award has been issued," Brown v. Witco Corp., 340 F.3d 209, 218 (5th Cir. 2003 (citation omitted)), Rule 40 "essentially codifies the common law doctrine of functus officio," Int'l Bhd. of Elec. Workers, Local Union 824 v. Verizon Fla., LLC, 803 F.3d 1241, 1248 (11th Cir. 2015) (citation omitted). Though the CBA provided that the decision of an arbitrator "shall be final," the CBA also authorized the arbitrator to reconsider his decision as long as it complied with Rule 40. Given the interlocking nature of these provisions, CWA's argument that the arbitrator violated the doctrine is a restatement of its argument that the arbitrator violated Rule 40—not an additional basis for relief. Because the arbitrator did not ignore Rule 40 in issuing his decision, he also did not ignore the CBA's finality provision or the functus officio doctrine.

The functus officio doctrine is also addressed in these posts:


"Functus Officio" precludes arbitrator from reconsidering award

Timeliness, functus officio, mitigating circumstances, and use of force

Arbitrator concludes "functus officio" precludes reconsideration of award

Arbitrator's failure to follow prior award not a basis for setting aside award

District Court finds Arbitrator exceeded authority by awarding attorney's fees to Union as a remedy for Employer's "frivolous" position

An earlier post noted competing efforts to vacate or confirm an arbitrator's back pay award for an individual whose employment had been terminated by Indiana and Michigan Electric Company. Recent Petitions to Vacate - Persona non grata, a dispute over back pay, and transfer of work to a non-unit employee. The Union (IBEW Local 1392) had sought an award of approximately $240,000.00. The Company calculated its liability at "negative $29,166.51.00."

The Award of Arbitrator Cynthia Stanley substantially adopted the Union's calculation, awarding a little more than $260,000.00 (which included interest on the backpay). (here) She also ordered the Company to pay the Union's attorney's fees of $2,560.00 for the Supplemental Briefing period on back pay, finding the Company's position on the back pay issue "frivolous and in bad faith." (here)

The District Court for the Northern District of Indiana has recently rejected most of the Company's challenges to the back pay award. Indiana Michigan Power Company v. International Brotherhood of Electrical Workers, Local 1392 The Court rejected the Company challenge to the Arbitrator's decision on calculation of back pay, the use of the maximum overtime and double time worked by an individual employed during the back pay period as an appropriate measure of damages, and the Arbitrator's declining to adopt the Company's position on grievant's alleged failure to mitigate his damages. It did, however, vacate the award of attorney's fees. In doing so, the Court noted that since the cba applicable to this dispute specifically provided that "each party 'shall' bear their own expenses, the Arbitrator must have based her award on some body of thought, or feeling, or policy, or law that is outside the contract." The Court recognized that the Seventh Circuit has held that an arbitrator has discretion to award attorney's fees where the contract is silent on the issue. Prairie Installations, Inc. v. Chi. Reg'l Council of Carpenters. Here, however, the cba was not silent on the issue but contained restrictive language. It also observed that the issue in this case "occup[ies] a unique category" in that the award of fees was not imposed as a remedy for a violation of the cba but "as a remedy for the Company's conduct of the presentation of arguments concerning the correct amount of back pay damages."

On the fees issue the Court concluded:

Ordering fees due to bad faith or frivolous argument would require an addition to, or modification of, the fee language. But the CBA specifically stated that the arbitrator "shall have no authority to . . . add to, detract from, or in any way modify the terms of the Agreements." Accordingly, the Court agrees that the award of attorney fees should be vacated.

The Court also found that the Arbitrator's award of payment to grievant for 8 hours of unused Personal Day Off time was duplicative of the award for back pay for the entire period grievant was off work.

The Union's request to confirm the awards remains pending, and the Court has requested the parties to identify any further issues and discuss the procedural posture of the case in light of the Court's rulings.

Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination

After a thorough review of the facts, Arbitrator Joseph Daly concludes that Eden Prairie police officer Travis Serafin did not lie about his handling of an application for a search warrant, and did not intend to mislead the court when he testified. Law Enforcement Services, Inc., Brooklyn Center, Minnesota [Travis Serafin] And City of Eden Prairie, Minnesota. Those allegations were the basis for the County Attorney's office designation of  the officer as a Brady officer and his decision that he would not use the officer as a witness in any case. As a result of the County Attorney's decision, the Department terminated the employment of Officer Serafin for his "inability to perform an essential function of his job as a police officer" i.e to provide courtroom testimony.

While the factual background is somewhat complicated, essentially the dispute arose when grievant sought to replace what he described as the lost first page of an application for a search warrant. In doing so, he printed out a new first page. That new page was somewhat different from the first page that had been on the original application. Grievant testified that the new page, consistent with all of his other search warrant applications, contained language seeking authorization to search any vehicles on the property. That language, according to grievant, had inadvertently been excluded from the first version of the affidavit, something grievant asserted he was not aware of at the time.

The confusion about that discrepancy led to grievant being disciplined by a reprimand, and removal from a Task Force and SWAT and required to attend additional ethics courses and work with  a supervisor in the creation and execution of search warrants. In response to a grievance filed over the discipline, the Department noted that "if we thought you had done this on purpose we would have fired you." That discipline was upheld by the City Manager as "final" and grievant worked for two and a half months as a patrol officer without incident.

Thereafter, the County Attorney notified the Department that it believed grievant had intentionally modified the application after it had been signed and had testified falsely about the circumstances. The Count Attorney notified the Department that "it cannot permit Mr. Serafin to ever be called as a witness in any case prosecuted by the office."

The Union claimed that the Department's actions violated the principle of double jeopardy, and were contrary to a MOU providing that a Brady designation "is not, in and of itself, related to the employee’s employment and will not be used by Eden Prairie PD for disciplinary purposes.” It also asserted that any conclusion that grievant intentionally misrepresented the circumstances surrounding  the creation of the new page was factually unsupported. It relied on prior arbitration awards, including Benton County and Law Enforcement Labor Services, Inc. (discussed in Arbitrator rejects claim that Deputy's "isolated lying incident" makes him Giglio impaired or provides just cause for termination) and sought to distinguish the decision in City of Cloquet and Teamsters Local 346 (discussed in Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness). The City maintained that the arbitrator did not have the authority to modify the County Attorney's decision concerning who to call as a witness and therefore "the only question for the arbitrator in this proceeding is whether Mr. Serafin’s inability to perform an essential function of his job as a police officer—provide courtroom testimony—constitutes 'just cause' for his termination."

Substantially sustaining the grievance, Arbitrator Daly concluded that grievant "is a credible witness who made a mistake." He noted:

This arbitrator has no authority to tell the Hennepin County Attorney’s Office, the Ramsey County Attorney’s Office, or the City of Eden Prairie City Attorney’s Office what witnesses they may call. But he does have the authority to opine that Mr. Serafin has faced a grave injustice in being classified as a Brady/Giglio officer. He should not be classified as an incredible officer. Just the opposite. His entire professional experience as a police officer, his hard work, his training, the very high opinion that his fellow officers hold of him, and his testimony show he is highly credible and capable. If this arbitrator had the authority to order the Hennepin County Attorney’s Office, the Ramsey County Attorney’s Office, and the City of Eden Prairie Attorney’s Office to remove its label of Brady/Giglio as applied to Officer Serafin and change each decision to no longer call Officer Serafin to testify, I would do so. But I do not have that authority. On the other hand, I would hope that Officer Serafin would have an opportunity to continue his work as a skilled and respected police officer in the City of Eden Prairie or in some other city he chooses to work. At least if he is called in a serious case for which he has critical evidence, such as murder in the first degree case, and the defense attorneys are given the information about his unfortunate mistake in the Holmes search warrant, he can use some of the language in this arbitration hearing to let the judge and jury know that at least an arbitrator who heard the facts in-full has concluded that Officer Serafin is a highly credible police officer who was terminated without just cause. 

He ordered the grievant's reinstatement to his former position with a loss of back pay for the time off because of his "unintentional mistake."