Teacher discipline, "Rubber Rooms" and judicial review

The New York City Board of Education has filed suit against the United Federation of Teachers, alleging that the Union has failed to implement an agreement to increase the number of arbitrators available to hear disputes involving claims of teacher misconduct or incompetence. A copy of the complaint can be found here. The issue arises from an April 2010 agreement between the Board and the UFT designed to expedite the process for arbitral review of such cases and eliminate the infamous "rubber rooms" to which teachers awaiting hearings were assigned. The Board claims that the Union has refused to agree to sufficient new arbitrators and has refused to follow the alternate process for selection of arbitrators when no agreement can be reached.

Two recent cases address issues of discipline for teacher conduct and competence and the scope of judicial review of those decisions.

 The Appellate Division of the New York Supreme Court has recently denied leave to appeal further the denial of an effort to overturn an award of Arbitrator Robert Grey upholding the termination of a New York City teacher. The dispute involved ten specifications (many with subparts) against the teacher. Among the allegation were "neglect of duty, failure to follow procedures and carry out normal duties, insubordination, and incompetent and inefficient service."

After hearing the evidence, Arbitrator Grey dismissed a number of the specifications. However he ultimately found merit to several others and upheld the termination. He concluded that the teacher "was unable to provide a valid educational experience for the students assigned to her classroom"  and that her "classrooms bordered on anarchy and had an unwarranted and unacceptable potential for danger that no student should be required to endure...." .The teacher sought to vacate the arbitrator's award, claiming that the process was biased, that  had been denied due process, that the decision was arbitrary and that the penalty was "shocking to the conscience"

The Supreme Court (the state's trial level court) rejected all of these claims. The court found neither  bias nor the appearance of bias and noted that the record showed the arbitrator "dismissed some of the specifications against [the teacher] because the conduct charged by school officials either did not rise to the level of the specification alleged, or  respondent had not met its burden of establishing [the teacher's] guilt of that charge. The remaining specifications that were not dismissed are well documented in that many of the exhibits that petitioner herself has provided in support of her petition." Among the specifications dismissed were allegations that the teacher had not provided "bell to bell" instruction and an allegation that she had :threatened to pass gas if students continued to converse in class. Supported, however, were allegations that she had failed to effectively manage and control her classroom, failed to maintain a "late log" and what Arbitrator Grey described as the teacher's "repeated failure to implement advice, counsel, instruction and recommendations..." concerning lesson planning , classroom instruction and classroom management.
Arbitrator Grey also rejected the teachers claim of disparate treatment

The court upheld Arbitrator Grey's award, concluding:

     The determination to terminate petitioner from employment is firmly supported by the extensive documentation of her incompetence. Therefore, the penalty imposed does not shock the conscience or one's sense of fairness.
     In view of the forgoing, respondent has met its burden of showing that petitioner does not demonstrate any statutory basis for vacating or modyfyibg the ward, and therefore, failed to state a cause of action. ... Furthermore, respondent has shown the hearing officer's award has a rational basis. Having failed to state a cause of action, respondent's cross motion for the dismissal of the petition is granted.

 The Supreme Court's opinion can be found here. The Appellate Division opinions affirming the decision and denying leave to appeal can be found here and here (p.64).


In contrast, a Supreme Court judge has overturned an award of Arbitrator Alan Berg upholding the termination of a teacher who was found in possession of 20 glassine bags of heroin as he was reporting for jury duty. Arbitrator Berg concluded that the teacher had subjected himself and the Department of Education to widespread ridicule, "compromising his ability to retain the respect of students and thereby throwing away his ability to be an effective teacher...." He noted that the teacher's conduct left the DOE with no way to know if the teacher had brought the same drugs to school.

Judge Manuel Mendez overturned the arbitrator's award, concluding:

Petitioner herein … was charged with Criminal Possession of a Controlled substance in the Seventh Degree 9a Misdemeanor),  and immediately at arraignment was given an Adjournment in Contemplation of Dismissal. After six months the charges were dismissed and the record sealed. The arrest was not for conduct at the school site or involving any of its students. There is no evidence that he as a criminal record, had been arrested before or since this one incident. There is no evidence that this one arrest or the publicity it generated has impaired his ability to reach, or that he has lost the respect of his students, or can be perceived by his students as a responsible adult to whom they pay attention. Petitioner has admitted he has a substance abuse problem; the arrest is a manifestation of that problem; he is receiving treatment for that problem and is progressing in his treatment. Under these facts, termination of employment is unduly harsh, an abuse of discretion and shocking to this court’s sense of fairness.

Judge Mendez's opinion can be found here.

Arbitrator's finding of improper subcontracting sufficient to support award of monetary damages

The United Mine Workers filed a grievance against Consolidated Coal, alleging that the Company had breached its cba by subcontracting certain work which the Union maintained should have been performed by bargaining unit employees. An arbitrator upheld the grievance and ordered Consolidated to pay damages for the violation.  He took the total amount of hours worked by the subcontractor, multiplied it by the cba's hourly rate, and ordered Consolidated to divide it equally and pay it to unit employees "who were available to work during the period of the subcontract work."

Consolidated filed a motion to vacate, arguing that since all bargaining unit employees were performing other jobs when the contracting took place no unit employee suffered any cognizable loss. Relying on the Fourth Circuit's decision in Baltimore Regional Joint Bd. v. Webster Clothes, Inc.,  Consolidated claimed that the award of damages in the absence of economic loss was an improper award of punitive damages and beyond the authority of the arbitrator. The District Court for the Northern District of West Virginia rejected this contention. Consolidated Coal Company v. United Mine Workers of America District 31, et al.. The Court observed that the Company did not claim that the work which had been subcontracted could only be done at a time  when all bargaining unit employees were performing other work. It further noted that the arbitrator had limited the remedy to those employees who were able to work when the contracted project was underway. 

Rejecting the claim that the award was an improper award of punitive damages the Court concluded:

this Court finds that the award was tied to a legally cognizable loss that is measurable in monetary terms. The bargaining unit employees lost a certain number of working hours due to the plaintiff subcontracting out work that based on the CBA, bargaining unit employees were to complete. The arbitrator fashioned an award based on those lost hours, multiplied those hours by the wage provided for in the CBA, and required the award be distributed to those employees who were able to work at the time the floor project was underway. This Court finds that it was within the scope of the arbitrator's authority to make such award. Thus, the award drew its essence from the CBA, as it was compensatory rather than punitive in nature

The Court granted the Union's cross motion for confirmation of the award, but denied its claim for attorney fees, finding that while the Company was unsuccessful its position had "an arguable basis in law."

Failure to provide Loudermill hearing "fatal" to claim of just cause for dismissal

Grievant was employed by Mount Joy (PA) Borough. At approximately 4 a.m.on the morning of November 6, 2010, he and another officer were dispatched to respond to a complainant reporting that his bicycle had been stolen several hours earlier. During the course of their contact, the complainant began acting erratically and, according to both officers, came "charging out" of his front door toward the officers. Grievant used a taser in an attempt to subdue the complainant, and over the course of the next ten minutes used the taser a total of fifteen times against the complainant, who died as he was being transported to the hospital.

Grievant's conduct was investigated by  the  Pennsylvania State Police and the Attorney General's office. The investigations concluded there was no basis for any criminal charges against grievant. The Mount Joy Police Department conducted its own internal investigation and the Detective conducting that investigation concluded that grievant had not used excessive force. Nevertheless, the Chief recommended to the Borough that grievant be dismissed for use of excessive force, and his employment with the Borough was terminated.

After a hearing, Arbitrator William Lowe rejected the allegation of excessive force. Arbitrator Lowe concluded that, taking into account the totality of the circumstances as required by the Borough's Use of Force Policy, the evidence failed to establish that grievant's use of force was excessive.

Arbitrator Lowe also addressed the claim of the Police Association that grievant had been denied due process because he had not been provided with a Loudermill hearing prior to his dismissal. Arbitrator Lowe noted:

The Association provided a prior case decision by Arbitrator Scott Bucheit ... wherein he ruled the discharge was not properly effected in that no Loudermill hearing was extended, and hence, no showing of Just Cause and no due process although, in that case, he reduced the penalty from discharge to a thirty (30) day suspension because of some extenuating factors. In that decision, Burcheit cites several precedent decisions- among them, Arbitrator Walt De Treux's ... arbitration decision in Police Employees of Silver Springs Township and Silver Springs Township .... In that decision De Treux commented,
         

             In and  of itself, the failure to provide contractual due process is fatal to the Employer's       burden of proving just cause for discharge. It does not, however, negate the Employer's right to discipline....I find that the due process violation, while precluding discharge, does not negate the Employer's right to discipline (grievant) in this matter.

Agreeing with the analysis of Arbitrator's Bucheit and De Treux, Arbitrator Lowe found the failure to provide grievant a Loudermill hearing prior to his termination a "fatal error," resulting a in a lack of due process for the grievant.

Finding no due process, together with no just cause for discipline, Arbitrator Lowe ordered grievant reinstated with full seniority and back pay.

Lancasteronline reports on the decision and Arbitrator Lowe's award can be found here.

Union wins reinstatement but challenges Last Chance provision of Award

Grievant was employed as a police officer by the Borough of Fountain Hill, PA. On June 4, 2012 he was involved in an incident with an individual he and another officer had transported to the police station. The individual in custody was intoxicated and exhibited violent mood swings. The second officer was placing the handcuffed individual in a holding cell. While there was disparity in the testimony concerning what took place next, grievant was alleged to have grabbed the individual in custody and forced him to the ground, causing some injury to his mouth. The incident was captured on video, but no audio was recorded. Grievant was dismissed because of alleged excessive use of force. The matter was unresolved in the grievance procedure and ultimately was submitted to Arbitrator Steven Wolf for decision.  Lehigh Valley Ramblings blog links to Arbitrator Wolf's Award here.

Arbitrator Wolf noted that the dispute "illustrates ... the sometimes fine line that Police Officers must observe- namely, the exercise of appropriate force in order either to subdue or maintain safe control of a suspect in custody." Nevertheless, he concluded: "The Borough here argues that, under the circumstances present on June 4, 2012, the grievant crossed that line and exercised excessive force when attempting to render [the prisoner] compliant in the holding area. I agree."

The Arbitrator determined that the grievant's account of the incident was "materially incorrect," and at odds with the video. He concluded:

The totality of the evidence persuades me that the grievant patently exceeded the force reasonably needed to subdue the intoxicated, injured, and handcuffed [prisoner] on June 4, 2012. His Incident Report Form, both by commission and omission, is, in my view, a misrepresentation of the
relevant events. Severe discipline was surely for just cause.

However, noting that grievant had produced three character witnesses, and testified that it had become his lifetime goal to pursue Police work, the Arbitrator concluded that he should be afforded "one final opportunity" to do so. While noting he was not minimizing grievant's "reckless and unprofessional performance" he awarded a "last chance" to demonstrate he was capable of sustaining a career in law enforcement. Accordingly he reinstated him, but concluded that "Any further documented acts of excessive force will result in grievant's termination without recourse to the grievance and arbitration process."

According to a report in Lehighvalleylive.com, the Fountain Hill Police Association has filed a petition with the County Court claiming the Arbitrator's imposition of the "last chance" condition exceeded his jurisdiction by denying grievant a just cause determination for any future acts of excessive force. Arbitrator's controversial decision for fired officer leads to new legal challenge for Fountain Hill.  According to the Union's lawyer, the Arbitrator's Award would leave grievant without any meaningful review of future alleged acts.

The issue of an Arbitrator's conditional reinstatement of a grievant is discussed in a previous post here.

Arbitration, Management Rights and Public Policy

 Lawrence, Mass. Firefighters, Local 146 grieved the actions of the City of Lawrence in laying off a  dispatcher while retaining a mechanic with lesser seniority. The City rejected the grievance, claiming that the layoff of the mechanic would create a safety issue. The dispute was submitted to arbitration, and the arbitrator determined the City had breached the collective bargaining agreement by deviating from its practice of laying off employees in inverse order of seniority.

 The City sought to vacate the award, arguing that management of the fire department rests with the Chief, and "that with this responsibility comes the inherent right to make decisions regarding policy and staffing." The City maintained that this responsibility was particularly important in divisions  like the fire department, whose purpose was public safety. It claimed that the arbitrator exceeded his authority and that the decision invaded the City's "nondelegable" managerial prerogatives and violated public policy by putting the public at a safety risk. The Superior Court rejected these positions and confirmed the award. The Appeals Court has now similarly rejected the City's arguments and affirmed the lower court. City of Lawrence v. Lawrence Firefighters, Local 146, IAFF.

 The Appeals Court held that:

 While the city is correct that a decision to lay off employees is a nondelagable managerial prerogative, ...it is clear that a public employer may negotiate to follow certain procedures when such a decision is implemented, and the question whether the employer has followed these procedures is a matter subject to arbitration. 

The Court also rejected the City's public policy argument, finding "no 'well-defined' or 'dominant' public policy in favor of fire departments retaining mechanics over other department employees."

In contrast, in a decision also issued in August, the Mass Supreme Judicial Court overturned an arbitrator's award finding the City of Boston in violation of a contractual provision restricting the transfer of certain union representatives between stations or assignments.  City of Boston v Boston Superior Officers Association. The Court concluded that  assignment and transfer of officers within the Boston police department "are non delegable statutory powers of the Boston police commissioner ... and, accordingly, ... the grievance arbitrator exceeded his authority in reversing the officer's transfer."

A similar issue has been raised in Alaska, where the State is seeking to set aside an award of Arbitrator Janet Gaunt finding the State violated its cba with the Alaska Correctional Officers by changing the schedules of certain correctional officers from an eighty four hour, 7 days on/ 7 days off  schedule to a five day/ forty two hour schedule.

Applying a "context rule" of contract interpretation, Arbitrator Gaunt found that the management rights provision of the cba was ambiguous. Looking to the parties past practice, the Arbitrator concluded that the State could not unilaterally change the schedule. She ordered the State to make whole employees impacted by the change and to restore the previous schedule.

 The State has filed a complaint to vacate the award. It alleges that the award violates public policy in that "the Alaska Constitution provides that criminal administration shall be based upon the need for protecting the public, and the Commissioner of the Department of Corrections has the statutory and contractual authority to protect the public by determining the hours of operation of correctional facilities and assigning the work shifts accordingly..." It also claims that the cost of compliance with the Arbitrator's order to restore the previous shifts "is so great as to result in an attempt to supersede the constitutional and statutory authority of the Commissioner of DOC and intrude on core management rights of the Commissioner to expend the public funds in accordance with the laws of the State."

The Alaska Correctional Officers Association links to Arbitrator Gaunt's award here and the State's complaint to vacate the award here.   

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.