Post termination conduct, just cause and public policy

The saga involving a sheriff's deputy first dismissed for allegedly stealing two potted plants continues.

As discussed here (Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension) the deputy was accused of stealing the plants from a city park. Grievant claimed she believed they had been abandoned. Arbitrator Dennis McGilligan, applying a "clear and convincing" burden of proof standard, concluded that the City had failed to establish grievant intended to steal the plants. However he found that she had failed to follow the department's policy on abandoned property and deemed a thirty day suspension appropriate. Reacting to testimony concerning grievants admitted post termination conduct of retail theft (shoplifting) the arbitrator noted that while there was little information in the record concerning the incident he deemed a sixty day suspension appropriate.

The Sheriff's office sought to vacate the award, arguing that the arbitrator utilized the wrong standard of proof and improperly ruled on the shoplifting incident. The court remanded the matter back to Arbitrator McGilligan for reconsideration under a preponderance of the evidence standard, and also agreed with the Sheriff that the shoplifting incident had been improperly considered. On remand the arbitrator again found a thirty day suspension warranted for the claimed plant theft.

The Sheriff's office reinstated grievant in accord with the award but dismissed her for the shoplifting incident.

The propriety of that  termination was submitted to Arbitrator Timothy Tobin. Arbitrator Tobin found that the second termination was also without just cause. (Arbitrator: Misconduct between initial termination and reinstatement no basis for post reinstatement termination). He found that since grievant was not employed by the Sheriff at the time of the incident there was no basis for discipline. He ordered her reinstatement.

The Sheriff's Office also appealed this decision and, according to press reports, the Sangamon County court has overturned the award. (Decision upholds termination, Judge rules sheriff doesn't have to reinstate Sangamon County deputy fired after theft). According to the reports, Judge John Schmidt concluded that the arbitrator's award "is repugnant to the firm, clear and resolute public policy against retail theft" He observed that such acts "are more disturbing when committed by law enforcement officers sworn to uphold the law." Accordingly he found that required grievant's reinstatement would be contrary to public policy.

"Double hearsay" insufficient to support teacher tenure charge

Arbitrator Edmund Gerber has granted a teacher's motion to dismiss tenure charges brought against him. The teacher was alleged to have engaged in a number of inappropriate actions, including, inter alia,  brushing up against the breasts of a 12 year old student, making "cat calls" to the student when she was in the hallway, touching the exposed bra strap of another student and making "creepy comments" to her, and "constantly" staring at a student during wrestling class.

In support of the charges, the School District offered a Statement of Evidence signed by the Superintendent. The Statement included attached emails and notes concerning the superintendent's conversations with the Board's attorney, the local police and prosecutor, and unsigned statements of two school administrators who interviewed the students involved. The attachments did not included any signed statements from the complaining students. The teacher claimed that the Superintendent's Statement of Evidence did not assert any personal knowledge on her part.

Granting the teacher's motion to dismiss the charges, Arbitrator Gerber concluded:

The Superintendent ... swore to a statement of evidence and signed under oath the tenure charges but nothing in the record indicated she directly participated in the investigation of the student's complaints or talked to any of those students and/or their parents. Moreover the documents which were relied upon when the tenure charges were brought before the Board consisted of emails and unsigned memorandum from the school administrators who conducted the investigation and the Superintendent's own notes. There are no signed statements from any of the complaining students or their parents. N.J.S.A 18A:6-11 requires that a "written Statement of Evidence under oath to support such charge shall be presented the Board," ...  An oath connotes swearing to the truth of the facts asserted. Here however, no signed written statement by someone with direct knowledge of the alleged events was ever presented to the Board.  The tenure charges were certified on the basis of double hearsay.

Finding this insufficient to meet the statutory requirements Arbitrator Gerber dismissed the charges without prejudice and ordered the teacher's reinstatement with no loss of salary.

Arbitrator Gerber's opinion can be found here.

The importance of testimony from someone with personal knowledge is also discussed at Importance of live witness testimony

Weapons on campus, just cause, management rights and public policy

The Superior Court in Rhode Island has set aside an arbitrator's award that had reinstated, without back pay, a housekeeper at Rhode Island College for having, and misplacing, a gun on campus.

The facts of the case were largely undisputed. Grievant, a thirty year employee, maintained that he was licensed to carry a weapon and that he unintentionally brought the gun with him when he reported to work. He testified that when he realized his error he started to return the weapon to his vehicle but didn't do so because he observed elementary school children near his car. He returned to work with the gun still in his possession. Shortly after leaving work grievant realized the gun was no longer in his possession. He called the College's Safety and Security office and reported that he believed he may have left the gun in a bathroom he was cleaning. The gun was not found in the bathroom, but in a trash can near one of the school buildings. Following an investigation grievant's employment was terminated, and that termination was grieved.

The arbitrator accepted the grievant's assertion that he brought the gun onto campus inadvertently and had no intent to cause harm. However he found grievant's conduct reckless and noted that "no employee can credibly claim to think that bringing a firearm to a college campus could be acceptable behavior." Nevertheless he concluded that termination was too severe a penalty and ordered the College to reinstate grievant without back pay.

The College sought to vacate, and the Union sought to confirm, the award. The Court granted the College's request to vacate. Relying on several cases arising in connection with disputes involving the  Department of Corrections, the Court found that the arbitrator had abused his authority and that his award was contrary to public policy. 

While recognizing that arbitrators have the authority to modify discipline, the court observed:

While the CBA states that just cause is needed to suspend or terminate an employee, it does not state that a different level of just cause is needed to suspend, rather than to terminate, an employee. See CBA, Art. 24. In one clause, the CBA says that just cause is needed to discipline employees, and in another clause, the CBA states that just cause is needed to suspend or terminate employees. Id. However, nowhere in the CBA does it state that more cause must be found to terminate an employee rather than to suspend an employee.

The court acknowledged that the arbitrator listed the management rights clause of the cba as a relevant contract provision, but concluded that he failed to mention or discuss the relevance of that provision. The court found this constituted  "an abuse of the arbitrator's power" and that the arbitrator therefore exceeded his authority.

The court also found the award contrary to public policy, relying on a "dominant, well-defined policy against violence in the workplace." It concluded:

Here, the arbitrator's decision, like the decision of the arbitrator in State v. R.I. Bhd. of Corr. Officers, 819 A.2d 1286, was irrational because it rendered RIC powerless to terminate an employee who had exposed the campus community—employees and students alike—to the security risk of a fully loaded firearm by bringing and then losing said firearm on campus. In light of the strong public policy interest that exists concerning keeping our schools, colleges, and universities safe from violence and crime, it is irrational and contrary to public policy to divest the Board and the State of the authority to terminate an employee who undisputedly violated a policy aimed at creating a safe and efficient campus and workplace.

For both of these reasons the court vacated the award.

News reports do not indicate if the Union intends to appeal. 

The court's opinion can be found here.

Quick Hits: Timeliness, vacation selection, Deflategate and conduct unbecoming

Arbitrator exceeded authority ruling on the merits after finding grievance untimely

 Amalgamated Transit  Union, Local 85 grieved the actions of the Port Authority of Allegheny County in unilaterally revising its performance code governing absenteeism. At the arbitration the Port Authority maintained  that the grievance was untimely, and even if timely was without merit. The Arbitrator agreed that the grievance as untimely but ruled further that in any event the PA had not breached the contract. The Union sought to vacate that portion of the decision addressing the merits of the grievance. It claimed that once the arbitrator determined the grievance was untimely the arbitrator was without authority to rule on the merits. The trial court rejected the Union's efforts, finding that the Union had never sought to bifurcate the procedural from the substantive issues. On appeal the Commonwealth Court of Pennsylvania reversed. It agreed with the Union, concluding:  " Because the merits portion of the arbitration award cannot logically flow from the CBA due to the arbitration panel's disposition as to timeliness, the arbitration award does not satisfy the essence test."
The Court's opinion can be found here.

City erred in canceling vacations during Republican convention 

The City of Cleveland, in anticipation of hosting the Republican National Convention, announced that no vacations would be approved for the time period surrounding the convention. The Cleveland Police Patrolmen's Association grieved this decision as contrary to its cba. The parties agreement provided for 52 one week "furlough" [vacation] periods during the calendar year and further provided that the same number of officers would be on furlough during each of the furlough periods. Arbitrator Alan Miles Ruben upheld the Union's grievance. He found that the management rights provision of the cba did not override the explicit language of the cba. However, in light of the disruption that would be created in recanvassing for vacation, and the undisputed need for an "all hands" response, he ordered the City to pay the most senior fifty (the number otherwise eligible for vacation)  Patrol Officers scheduled on duty, in seniority rotation, time at the call in rate overtime rate. Cleveland.com reports  on the decision and links to the award here.

Two briefs filed seeking reconsideration of Deflategate decision

 The NFL Players Association has filed a request for reconsideration with the Second Circuit, seeking a rehearing of the Court's decision upholding the suspension of Tom Brady. A copy of the Union's brief is available here. The New England Patriots filed  an amicus brief in support of the request.


Termination of police officer for racially derogatory text messages upheld

Arbitrator Carey M. Fischer has upheld the termination of a Fort Lauderdale police officer who engaged in an exchange with coworkers of text messages containing "disparaging and offensive racial terminology." Arbitrator Fischer rejected the officer's claims that the messages had been improperly intercepted, that he had a right to privacy in communicating with fellow officers, and that his communications were protected by the First Amendment. The arbitrator observed: "The heat of battle is one thing; denigrating a whole group as part of one's personal entertainment is another. A slip of the tongue in a fit of pique or a one time indiscretion maybe allowable. But, the conduct in this case is not." Accordingly he upheld the decision of the City that grievant had engaged in "conduct unbecoming a police officer" and found sufficient cause for dismissal. Local10 reports on the case and links to Arbitrator Fischer's award here.

CA9: Decision that an award is not "plausible" is insufficient to vacate

A dispute arose between Drywall Dynamics, Inc and the Southwestern Regional Council of Carpenters concerning attempts by the Company to withdraw from a multi employer bargaining arrangement. The Company's initial attempt to terminate its participation was rejected by the Union as untimely. A second rejection occurred after the association and the Union entered into a Memorandum of Understanding extending the cba for an additional year. In response to a grievance concerning the Company's claimed breach of the cba, an arbitration panel determined that the Company's purported withdrawal was untimely. 

The Union sought to confirm the award and the Company sought to vacate it. The District Court vacated the award, concluding that the arbitrator's interpretation of the agreement was not plausible, and that it was contrary to public policy.

On the Union's appeal, the Ninth Circuit has reversed. In doing so it recognized that language of several earlier opinions suggested that an award would be deemed to have drawn its essence from the parties cba as long as it was a "plausible interpretation of the contract." It determined however, that the plausibility inquiry did not authorize an independent basis for an attack on the merits of the award. Finding that the term was "somewhat misleading" the Court decided to eliminate its use. It concluded:

...it is time for us to retire the use of "plausibility" as a term to describe the courts' role in reviewing labor arbitration awards. We do not, of course, propose any substantive change to the settled law in this area, nor could we. We merely reiterate, and emphasize, the fundamental concept  Hawaii Teamsters articulated, drawing on decades of Supreme Court jurisprudence: the quality—that is, the degree of substantive validity—of an arbitrator's interpretation is, and always has been, beside the point. Instead, the appropriate question for a court to ask when determining whether to enforce a labor arbitration award interpreting a collective bargaining agreement is a simple binary one: Did the arbitrator look at and construe the contract, or did he not?

Concluding that the panel's  analysis was grounded in a reading of the parties' agreement the Court found that the award was entitled to be confirmed.

The Court also rejected the Company's public policy challenges to the award which had claimed the award violated a policy of voluntary relationships between employers and multi employer associations and that it improperly imposed union representation on the Company's employees. 

The Ninth Circuit's opinion can be found here.

Working below classification, seniority and management rights

These were the topics in issue in a recent award by Arbitrator Richard Beens.

 The dispute arose between Boise White Paper and Steelworkers Local 159 and involved interpretation of the parties' cba. The agreement had what the arbitrator described as a strong management-rights clause providing:

Section 3.1 The Company has the right to assign work to employees, irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way. Further, nothing contained in this Agreement including, but not limited to, the Recognition Article shall limit in any way the Company’s right to assign work to employees covered by this Agreement or to other employees not cover by this Agreement.

The Company and Union were parties to a separate Memorandum of Understanding which also addressed the assignment of work and was designed to enhance efficient operation of the facility. It was the relationship between these two documents that formed the basis for the Union's claim. Specifically the Union challenged Company's temporary assignment of bargaining unit employees to jobs below their attained position on the seniority ladder. 

The Progression Ladder which had previously been in place at the facility engendered what the arbitrator referred to as a "not my job" refrain from unit employees. The MOA was designed to address that perception and enhance the efficiency of a struggling operation. The Union claimed, however, that the MOA did not authorize the Company to temporarily assign employees downward, and claimed that such an assignment violated employees' seniority rights.

Arbitrator Beens rejected these claims, concluding:

The Union argues that the giving the Employer the right to assign downward nullifies the seniority provisions of the CBA. I disagree. Union members continue to accrue seniority during their temporary assignments and are only assigned to positions for which they are qualified, again as required by the CBA. The Union presented no evidence that [Grievant's], or any other Local 159 member’s, seniority or qualification status was in any way affected by a temporary assignment.
                                                     ***

In summary, Article 3.1 gives the Employer broad rights to assign employees, “...irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way.” The CBA, MOA, and Pay for Knowledge provisions relied on by the Union do not modify the Employer’s rights to make temporary downward assignments under Article 3.1. Base[d] on the clear, unambiguous contract language, I must deny this grievance. 

Arbitrator Beens' award can be found here.

MD Court: Arbitrator exceeded his authority when he relied on a cba provision the County was not authorized to negotiate

Prince George's County, MD and the Prince George's County Police Civilian Employees Association were parties to a cba that included  language providing that covered employees were entitled to a notice of their eligibility to have a Union representative present prior to an investigatory interview.

Grievant was the subject of both a criminal investigation regarding alleged crimes and an internal affairs investigation concerning workplace conduct. Grievant was interviewed by employees of the Department's Criminal Investigations Division concerning the alleged crimes, and separately by the Department's Internal Affair's Division concerning workplace issues. Grievant was provided the requisite notice concerning the Internal Affairs investigation but not for the CID interview. Grievant's employment was ultimately terminated. An arbitrator overturned the dismissal, concluding in part that the failure to provide notice of grievant's eligibility for the presence of a Union representative during the CID investigation violated the cba and undermined the County's claim of just cause

The City sought to set aside the award, arguing, inter alia, that the award was against public policy. The Court of Special Appeals granted the County's request, concluding (in an opinion discussed in Weingarten and criminal investigations of employees) that the award was contrary to an explicit , dominant, and well-defined public policy of effective law enforcement. The Union appealed, and the Maryland Court of Appeals has now affirmed, but on different grounds. The Court described the issue before it as:

whether a county has the authority under the county's code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county's police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

Concluding that the County had no such authority, the Court went on to decide that the arbitrator had therefore exceeded his authority by relying on a provision of the cba that was beyond the County's authority to enter into. It noted: 

In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator's authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that PGCC § 13A-109(a) does not confer upon the County the authority to enter into a collective bargaining agreement requiring that a police civilian employee be advised of a right to have a union representative present before a criminal investigative interview by the Prince George's County Police Department.

In light of this conclusion the Court found it unnecessary to decide the public policy question addressed by the Court of Special Appeals.

The Court's opinion in Prince George's County Police Civilian Employees Association v. Prince George's County, Maryland can be found here.