Acquitted of criminal charges, but just cause for dismissal

Grievant was employed as a middle school teacher. In addition to his teaching duties he performed  a number of advisory and extracurricular functions, including organizing student dances and serving as faculty advisor to the Junior National Honor Society. He also supervised the student run "School Store" and the sale of candy for fundraising purposes.

During his tenure grievant personally handled the cash receipts from these activities, keeping the cash in his classroom. A new principal modified the cash management procedures and prohibited the retention of cash by teachers. Notwithstanding that directive, grievant continued to manage cash as he had done before. Because of growing concerns that grievant was diverting school funds to his own use, the school superintendent requested that the local police conduct an investigation. As a result of the investigation, grievant was charged with several counts of larceny. Following a trial, a jury found grievant not guilty of the charges.

Within a week of the verdict, grievant was notified of the termination of his employment.The charges against him included insubordination, untruthfulness, incompetence and conduct unbecoming a teacher - more specifically misappropriation of funds. The teacher's union pursued the dispute to arbitration, and Arbitrator Philip Dunn has rejected the grievance and upheld the termination.

Arbitrator Dunn rejected the Union's claim that the acquittal "should have ended the inquiry" on the misappropriation of funds, noting:

 the standard of proof applied in those criminal proceedings, proof beyond a reasonable doubt, is a significantly higher burden of proof than the one which the employer must meet in order to establish just cause for termination of the grievant’s employment. The findings of not guilty in the criminal proceedings, then, do not foreclose the Employer from seeking to prove by clear and convincing evidence that a misappropriation of funds occurred, thus establishing just cause for summary termination for that offense

He also rejected the Union's argument that the termination of grievant's employment was inconsistent with the principle of progressive discipline. The Arbitrator acknowledged that the principal:

     failed to apply lower levels of progressive discipline that might well have helped [grievant] appreciate the absolute necessity of conforming his behavior to the policies she had established. One has to wonder if Donais was disinclined to impose any discipline upon the grievant because he had in August been generous in helping her get prepared for her first year as principal, and/or because of her newness in the role of principal. In any case, she did not take any disciplinary action on any grounds against the grievant until January 2011, when matters had escalated especially regarding fiscal matters.
     To then cite this collection of relatively minor offenses which occurred months prior the
grievant’s placement on administrative leave, as part of the rationale for summary termination,
looks more like improper, “cumulative” discipline rather than the progressive discipline which is
an integral part of the just cause standard. It is inconsistent with the concept of just cause to
knowingly allow a bunch of lesser offenses over time to go undisciplined at a lower level, but
then to add them all up and assert that as accumulated, they justify summary termination.

Nevertheless, he concluded

in the case of egregious insubordination and misappropriation of student activity funds as occurred here, after and notwithstanding the clear and forceful directives from Assistant Superintendent Kosmes; and then followed by dishonesty as the school administration tried to learn what had in fact transpired; the Employer was justified in moving directly to termination of employment, without any progressive discipline. Moreover, given these facts, the best interests of the pupils in the school district were properly served by the summary termination of grievant’s employment, notwithstanding his many years of service to the Haverhill Public Schools.

Arbitrator Dunn's award in Haverhill Education Association and Haverhill School Committee can be found here.

Two APWU Awards

Arbitrators have recently issued awards in two USPS/APWU cases.

In the first, Arbitrator Stephen Goldberg interpreted the language of the parties' cba that provided for payment of a higher starting salary to certain Postal Service employees "with the concurrence of the Union" when an increase was necessary for recruitment or retention.The dispute arose when the Postal Service approached the Union seeking their concurrence and, according to the Postal Service, the Union made an unrelated demand as a condition of their concurrence. USPS maintained that the Union could only negotiate concerning the amount of the proposed increase. APWU maintained that nothing in the Agreement precluded it from conditioning its concurrence on issues other than those related to the amount of the hourly rate proposed.

After reviewing the language, and the bargaining history, Arbitrator Goldberg reached a conclusion somewhat between the positions taken by the parties. The Arbitrator determined:

 Since the disputed language was proposed by the Union to serve Union interests, Union concurrence was not likely to have been viewed by the Union as limited to the narrow question of the amount of the proposed PSE wage increase, but could logically include other matters related to the Postal Service's proposal. Similarly, because the core issue dealt with by the disputed sentence is PSE wage rates, it is wholly unlikely that the Postal Service would have agreed to give the Union a blank check to condition its concurrence on grounds wholly unrelated to the PSE wage rates under consideration. Accordingly, I conclude that the Union may condition its concurrence on a Postal Service proposal to increase PSE wage rates solely upon matters reasonably related to the Postal Service's proposal, including, but not limited to, the amount of the proposed increase. 

In the second case, Arbitrator Shyman Das was called upon to interpret language first include in the parties' 2006 Agreement. The issue before Arbitrator Das was whether language referencing a notice requirement for subcontracting decisions made at the "Field level" included run of the mill work contracted at the local level. The Postal Service maintained it did not intend the meaning attributed to the language by the Union. Arbitrator Das rejected this position, concluding:

The record in this case includes Article 32 Due Consideration Worksheets routinely completed
at the local level when a decision is made at that level to contract out what the Postal Service
characterizes as "run of the mill" work. Therefore, even taking the SIAG guidelines into account, the evidence does not support the Postal Service's argument that the Union had reason to know of the interpretation the Postal Service asserts it attached to the term "Field level" in Article 32.1.C during the 2006 negotiations, and, objectively, it must be concluded that the term "Field level" as used in that provision includes local, as well as district and area decision making.
     Accordingly, the Union's position in this case that Article 32.1.C requires notification to the local union of decisions to subcontract bargaining unit work at local installations made at the local, as well as district or area, level is sustained.

APWU links to the award of Arbitrator Goldberg here, and the award of Arbitrator Das here.

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
_____
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.