Off duty conduct, credibility and progressive discipline

Arbitrator Clarence Rogers has upheld the dismissal of a police officer who had allegedly attempted to report to work under the influence of alcohol. In doing so he discussed several topics he considered in making his decision.

Grievant had been out with friends on the evening before Thanksgiving. She was drinking, and a coworker called the officer in charge to report what he had observed. The OIC called grievant to remind her she was scheduled to work a voluntary overtime dispatch shift beginning at 3 a.m.  Grievant explained that she erroneously believed she was scheduled for the following night and had been drinking and would be unable to make the dispatch shift. Grievant was also scheduled to report for her normal tour at 7 amThanksgiving day. The OIC reported the incident to the Chief. The OIC also reported that grievant had been observed operating her vehicle by another officer, who arranged to drive her home. The Chief went to grievant's house shortly before 7 a.m. He observed grievant in full uniform, with her firearm, getting into a vehicle. After asking her what had happened the previous evening, he directed her to remove her firearm and arranged transportation for a drug/alcohol test. The test showed a blood alcohol content of .139. Grievant's employment was terminated and the case was ultimately submitted to arbitration.

At the hearing, the Chief agreed that grievant was neither on duty nor on township property at the time she was sent to be tested. Grievant testified that she had been entering a friend's vehicle to use the cell phone to report off work when the Chief observed her.

Initially, Arbitrator Rogers noted:

The general rule is that an employer has no right to use its disciplinary power to regulate the lives and conduct of its employees outside the workplace. There are some generally accepted exceptions to this principle. The dividing line is the employer's legitimate business interest and the employee's right to privacy.¹
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¹The standards were first articulated by Arbitrator Louis C. Kesselman in W.E. Caldwell Co., 28 LA 435, 436-37 (1957), where he held that discharge for conduct away from the work place is impermissible unless: 1) behavior harms Company's reputation or product. 2) behavior renders employee unable to perform his duties.. 3) behavior leads to refusal, reluctance or inability of other employees to work with him ...

He noted, however, that off duty activity committed against the public, in public places, "requires special scrutiny," and that public employees, particularly those engaged in law enforcement, are held to an even higher standard. A law enforcement official who violates the law "destroys public confidence in law enforcement, demoralizes the entire enforcement agency, and brings discredit to his/her employer."

Assessing credibility, the Arbitrator rejected grievant's explanation that she was going to the car to call out from work. He noted that grievant was in full uniform, with a firearm, and did not immediately tell the Chief of her plan to call out. Had she intended to call out she would, he believed, have said so at the time.

The arbitrator further noted that while grievant had no prior discipline related to alcohol use, her prior record did not help her situation. He observed:

Progressive discipline is good employment relations practice, since it can correct bad performance and preserve a satisfactory employment relationship that benefits the employer and employee. Grievant has been progressively disciplined in the past. However, when an employee's misconduct is so severe that continued employment would undermine an employer's ability to function effectively, discharge is deemed appropriate. This is true even if the employee has received no similar discipline; and is unlikely to repeat the offense. Discharge serves the legitimate purpose of deterring other employees from engaging in such conduct. See e.g. Freemen United Coal Co., 82 LA 861, 866.

Based on the totality of the circumstances, the Arbitrator determined that grievant's actions justified the township's decision and that the discharge was for just cause.

Arbitrator Rogers' award in FOP Ohio Labor Council and Perkins Township can be found here.

Court: Arbitrator can compel employee to resign

Grievant was a police sergeant with the Trenton, OH police department. His employment was terminated for events relating to his issuing a traffic citation to the wife of a firefighter from a neighboring community. After the citation was voided by the Lieutenant, grievant sent a "clearly sarcastic" email to him and complained to the Chief. According to the Chief and Lieutenant, grievant was instructed to take no further action until a meeting among them could be scheduled. Nevertheless grievant went to the home of the individual to whom he had initially issued the ticket and reissued it. He also spoke with the firefighter-husband, telling him that the Lieutenant's action in voiding the ticket was unlawful and that he may face criminal charges. Grievant also investigated the Lieutenant's use of an impounded vehicle using a law enforcement data base and meet with the County prosecutor while on duty. After a hearing grievant was deemed to have violated the Department's Code of Conduct and his employment was terminated. The Ohio PBA filed a grievance and pursued the case to arbitration.

The arbitrator determined that grievant's reissuance of the traffic citation was insubordinate and deserving of disciplinary action. She also concluded that the conversation with the firefighter-spouse warranted "some significant disciplinary action." The arbitrator additionally noted that the circumstances leading to the discipline created distrust among the three commanding officers of a small police department. As a result, the Arbitrator concluded:

The grievance is sustained in part and denied in part. [Grievant’s] discipline shall be reduced to a thirty day unpaid suspension but he shall not be reinstated to employment. [Grievant] is awarded back pay from August 20, 2011 to the date of this Award together with benefits and any out of pocket loss as a result of the termination of benefits from the date of his termination to the date of this Award. The termination shall be removed from [grievant's] personnel file and [grievant] will be considered to have resigned from employment effective on the date of this Award.

The Union sought to vacate that portion of the award requiring grievant to involuntarily resign. The City sought to confirm the award. The Court of Common Pleas agreed with the Union, and the City appealed. The Ohio Court of Appeals has reversed and confirmed the Arbitrator's award.

Contrary to the lower court, the Court of Appeals concluded that the award drew its essence from the cba, noting that the cba defined available forms of discipline as written reprimands, suspensions without pay, and discharge. The Court observed:

The arbitrator further concluded that, because of [grievant’s] conduct in relation to his commanding officers, distrust was created within the Police Department that could not be eradicated. In addition, the arbitrator explained the advantages and disadvantages of resignation rather than termination. While the arbitrator determined [grievant’s] conduct warranted him leaving the police department, she did not want to obstruct his future employment in law enforcement. Thus, the arbitrator made one remedial determination, finding that [grievant] should serve a 30-day suspension without pay followed by resignation from employment while having the termination removed from his personnel file.

The court concluded that the arbitrator’s holding that grievant should resign fell within the essence of the cba “which permits the removal of an employee from employment.”

The dissent would have affirmed the lower court, noting "I think it inappropriate to allow an arbitrator the authority to force an employee to resign from employment when an employer does not have this type of power."

The court's opinion in Ohio Patrolmen's Benevolent Association v. City of Trenton can be found here.

Connecticut Supreme Court: Egregious sexual harassment compels termination, arbitrator's contrary award set aside

"The issue to be decided in this appeal is whether an arbitrator’s award violates public policy when an employer’s decision to dismiss an employee who has engaged in sexual harassment is reduced to a one year suspension without pay." This was the question decided by the Connecticut Supreme Court in State v. AFSCME, Council 4, Local 391.

The dispute arose from the termination of a correctional officer for sexual harassment. The grievant had been accused of making verbal comments to a coworker and touching him, allegedly in front of other employees and inmates. The acts were said to have occurred over an extended period of time.

While finding some of the witnesses may have "stretched the truth", the arbitrator concluded that the accusations were true and were substantiated by the witnesses. The arbitrator also concluded, however, that the offenses were not severe enough to justify termination of employment. Accordingly the termination was reduced to a one year unpaid suspension.

Affirming the lower courts, the Connecticut Supreme Court has determined that the award reinstating the correctional officer is contrary to the public policy against sexual harassment in the workplace. The Court held that the facts as found by the arbitrator compelled the termination of employment. The Court noted:

the grievant knowingly violated the state’s public policy against sexual harassment, as embodied in administrative directive 2.2, and ... his misconduct was both highly egregious and incorrigible. We also emphasize the undisputed fact that the conduct occurred in a prison in the presence of other employees and inmates, where the need for order, discipline and a culture of mutual respect among employees is particularly acute. Accordingly, we conclude that the public policy against sexual harassment in the workplace ‘‘require[d] nothing less than [the grievant’s] termination . . . .’’ Brantley v. New Haven, supra, 100 Conn. App. 863. We simply cannot conclude that ‘‘reasonable people [could] differ as to whether reinstatement or discharge [was] the more appropriate’’ form of discipline for this absolutely deplorable and repeated misconduct ...[footnotes omitted]

The Court also noted that the Union had presented evidence that other employees who engaged in sexual harassment had been disciplined short of termination, but concluded that:

although we must defer to the arbitrator’s factual findings with respect to these incidents, it is ultimately for this court, not the employer, to make the legal determination as to whether a particular form of discipline for a particular incident of employee misconduct complies with the public policy of this state. In other words, the fact that an employer has previously violated a public policy by retaining an employee who should have been dismissed does not alter the public policy or justify additional violations of the public policy.

The dissent would have confirmed the award, observing:

...the decision reached by the majority takes away the discretion of the arbitrator, when the collective bargaining agreement, as in this case, allowed for that very discretion. Further, the rule adopted by the majority effectively grants authority to the state to discharge an employee whenever sexual harassment is established, regardless of the nature of the harassment, thereby undermining the arbitration process voluntarily agreed to by the parties.

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.