Sunday, April 14, 2019
Tripartite arbitration and work jurisdiction disputes
Reversing the District Court, the Seventh Circuit has found that a dispute between Brock Industrial Services and two of its unions (the Carpenters and the Laborers) was a jurisdictional dispute excluded from arbitration under the Laborer's cba with Brock. Under the applicable cba, work-jurisdiction disputes were subject to a separate tripartite procedure. Brock Industrial Services, LLC v. Laborers International Union
Brock had initially assigned certain scaffolding work to employees represented by the Laborers. Shortly thereafter, however, it reassigned that work to employees represented by the Carpenters.
The Laborers filed a grievance under its own cba, and pursued that dispute through the dispute resolution procedure under the agreement. The Grievance Review Subcommittee of the National Maintenance Agreement Policy Council rejected Brock's claim that the matter was one of jurisdiction, outside the authority of the Subcommittee, and found that Brock had violated the cba when it reassigned the work to the Carpenters.
Brock sought to vacate that decision.The District Court rejected that effort, concluding that while the Subcommittee lacked authority if the grievance concerned a jurisdictional dispute, since the grievance concerned both a jurisdictional dispute and a wrongful termination claim the Subcommittee could properly decide the later dispute. The District Court's opinions can be found here and here.
Reversing, the Seventh Circuit concluded:
The gravamen of the grievance is work jurisdiction. The grievance and its supporting documents all complain that Brock improperly assigned work to the Carpenters instead of the Laborers. The Grievance Form Fact Sheet demanded that Brock "make proper assignment of work to the Laborers' Union," "reinstate the Laborers," and compensate workers for "lost wages and benefits." Indeed, the Subcommittee sustained the grievance because Brock "made a change of assignment." In other words, the Laborers complained (and the Subcommittee found) that Brock assigned work to the wrong union. That's the definition of a jurisdictional dispute. The Subcommittee therefore had no authority to arbitrate the grievance. The contract required tripartite arbitration in which the competing unions and the employer could be heard.
The Circuit distinguished earlier cases involving claims that an employer improperly subcontracted work to a employer who assigned the work to a different union, finding a subcontracting grievance "a district non-jurisdictional clam" not dependent on the identity of the employees who ultimately performed the work. Hutter v. Local 139, 862 F.2d 641 and Miron Construction Co v. International Union of Operating Engineers, Local 139, 44 F.3d 558. It found a third case (Alberici-Eby v. Local 520, International Union of Operating Engineers) "hard to reconcile" but noted in that case that the employer had failed to timely invoke the tripartite procedure.
In light of its analysis, the Court rejected the District Court's conclusion that the Laborers could pursue their bipartite grievance because several Laborers, who had been working on the project, were removed from the assignment, noting that this claim "necessarily implies that the work was misaligned" and thus "squarely on the work-jurisdiction side of the line."
It also rejected the lower court's conclusion that the Laborer's reliance on specific language in its cba provided the basis for an independent arbitration, noting:
The provision in question states: "During the existence of the [a]greement, there shall be no strikes, lockouts, work stoppages, or picketing arising out of any jurisdictional dispute. Work will continue as originally assigned, pending resolution of the dispute."
Grievances arising under this provision are indeed subject to bipartite arbitration. Like the subcontracting provisions in Hutter and Miron, a dispute under this provision can be separately arbitrated without interfering with a jurisdictional dispute. Suppose for a moment that the Laborers and the Carpenters submitted a jurisdictional dispute to tripartite arbitration, and to pressure Brock into taking its side, the Laborers Union called a strike, prompting Brock to file a grievance under Section 5. It would be completely consistent for one arbitrator to award the work assignment to the Laborers and another to sanction the Laborers for initiating a strike. Neither award would call the other into question.
But bipartite arbitration was not appropriate just because the Laborers labeled the grievance as one arising under Section 5. We look instead to the substance of the grievance. And in substance, this grievance is a work-jurisdiction dispute. As such, it was subject to tripartite arbitration, and the Subcommittee lacked arbitral authority.
Sunday, March 31, 2019
Just cause for termination, but City failed to establish discipline was taken within 180 days as required. Employee reinstated
In a case that has received considerable publicity, Arbitrator Don Williams has ordered the reinstatement of a San Antonio police officer the City had dismissed for allegedly leaving a "feces sandwich" in an area where officers were attempting to move several homeless individuals. (here) Grievant had directed some of the individuals to assist in picking up trash scattered in the area. He acknowledged picking up some dog feces using some discarded bread and left it in a discarded food container. He stated he assumed one of the individuals would pick it up and dispose of it. Following an investigation, the Chief decided to terminate the officer's employment, believing that his actions had been an intentional effort to humiliate a homeless man.
Arbitrator Hays concluded that even if grievant had not intended to commit "an act to bring reproach or discredit" on himself or the Department, he had in fact done so and that termination would be reasonable. However, in light of the conflicting testimony concerning the date of the incident, he found that the City had not established that it had imposed discipline within 180 days, as required by applicable law. He did uphold a five day suspension for an unrelated incident.
Arbitrator Williams concluded:
The written statement or charging letter assessed discipline for [grievant's] actions with the fecal sandwich, failure to take action on the active warrant, and failure to report the incident with the homeless person. The Association on behalf of [grievant]argued there was a violation of procedural due process as stated in the so-called "180-day rule." All of these violations were alleged to have been committed when the incident with the homeless person occurred except the failure to take action on the active warrant. Therefore, the failure to assess discipline within the 180 days prohibits the introduction of evidence complain of the fecal sandwich incident failure to report. The only violation permitted as within the 180 days is the failure to take action with the discipline assessed as written reprimand or five (5) day temporary suspension. The indefinite suspension [i.e termination] is overturned due to the violation of the 180-days prohibition.
Sunday, March 24, 2019
Arbitrator: City ordinance could not modify firefighters pension plan set forth in cba
Arbitrator Michel Ryan has upheld a grievance filed by IAFF Local 2748 against the City of Warwick, RI. (here)
The grievance asserted that the City had unilaterally modified the firefighter's pension plan through passage of a City ordinance creating a two tier plan applicable to new hires. Arbitrator Ryan initially rejected the City's claim that the grievance had not been filed in a timely manner, accepting the Union's explanation that it waited to file the grievance to see if the City would in fact implement the new plan. He noted further that, in any event, the grievance was timely "as a 'continuing' violation, which would have the same remedy because nothing actually changed more than 30 days before the grievance was filed."
On the merits, he concluded that "There is really no dispute that the two-tier plan under the Amended Ordinance violates the CBA." He rejected the City's claim that, as a matter of law, the ordinance superseded the CBA, and noted further that the changes made by the ordinance had been "specifically and repeatedly" rejected during collective bargaining.
He concluded:
As a general matter, the task of a labor arbitrator is to interpret and apply the collective bargaining agreement. The grievance-arbitration forum is not a court of general jurisdiction, and the expertise and authority of arbitrators do not extend to construing statutes and court precedent. More specifically, the parties here have agreed, in Article XII, §1, that the contractual grievance procedure "involv[es] the interpretation, application or alleged violation of the provisions of this Agreement and/or the rules and regulations of the Fire Department." This language does not include external law.
Since the two-tier plan under the Amended Ordinance violates the CBA, we find for the Union on the merits issue. As a remedy, we will order the City to cease any enforcement or implementation of that plan, to comply with the terms Article XIV, and to make whole all affected members of the bargaining unit.
The City representative on the panel dissented.
The grievance asserted that the City had unilaterally modified the firefighter's pension plan through passage of a City ordinance creating a two tier plan applicable to new hires. Arbitrator Ryan initially rejected the City's claim that the grievance had not been filed in a timely manner, accepting the Union's explanation that it waited to file the grievance to see if the City would in fact implement the new plan. He noted further that, in any event, the grievance was timely "as a 'continuing' violation, which would have the same remedy because nothing actually changed more than 30 days before the grievance was filed."
On the merits, he concluded that "There is really no dispute that the two-tier plan under the Amended Ordinance violates the CBA." He rejected the City's claim that, as a matter of law, the ordinance superseded the CBA, and noted further that the changes made by the ordinance had been "specifically and repeatedly" rejected during collective bargaining.
He concluded:
As a general matter, the task of a labor arbitrator is to interpret and apply the collective bargaining agreement. The grievance-arbitration forum is not a court of general jurisdiction, and the expertise and authority of arbitrators do not extend to construing statutes and court precedent. More specifically, the parties here have agreed, in Article XII, §1, that the contractual grievance procedure "involv[es] the interpretation, application or alleged violation of the provisions of this Agreement and/or the rules and regulations of the Fire Department." This language does not include external law.
Since the two-tier plan under the Amended Ordinance violates the CBA, we find for the Union on the merits issue. As a remedy, we will order the City to cease any enforcement or implementation of that plan, to comply with the terms Article XIV, and to make whole all affected members of the bargaining unit.
The City representative on the panel dissented.
Sunday, March 10, 2019
Sixth Circuit refuses to vacate award finding subcontracted drivers and temporary employees were "one in the same" under language in a cba
Faced with a need for additional drivers, Economy Linen and Towel Service of Zanesville entered into a service agreement with ProDrivers for that Company to provide certified drivers on a contract basis. The Union representing Economy's drivers (Teamsters Local 637) filed a grievance challenging that action. The Unions asserted that the ProDrivers were being compensated at a rate higher than full time drivers in violation of the cba. The Company denied the grievance, asserting that it had contracted the work to ProDrivers as allowed by the cba, and it had no knowledge or control over how much ProDrivers paid its drivers. The dispute was unresolved in the grievance procedure and was ultimately submitted to Arbitrator Lawrence Roberts for decision.
In his award, Arbitrator Roberts saw the dispute as being resolved by the "unambiguous language" of the agreement, specifically the definition of temporary "on call" employees.
Sustaining the grievance, the Arbitrator rejected the Company's reliance on its contractual right to subcontract. He found controlling the contractual provision that "In no event will a temporary or part time employee be hired at or given a higher rate than a full time employee." He noted that while the term "full time employee" was defined in the cba, "[t]here is no language found within the same Agreement specifically defining either a temporary or part-time employee in a similar context."
Concerning the Employer's right to subcontract, he found that right "unimpeded until one reaches the Hours of Work and Overtime provision." There temporary ("on-call") employees were defined as "individuals who are on call to work when regular full-time employees are not available to work or to augment the work force in peak periods." Arbitrator Roberts found this language "precisely defined" the ProDrivers in this case. He concluded:
The Parties clearly agreed to allow subcontracting, however, failed to specifically draw a distinction between a subcontracted employee and a temporary employee. The negotiators could have easily done so. However, the absence of any language in that regard makes it clear, at the face value of the Agreement, that a subcontract and a temporary employee are in fact, one in the same. And Article 6.08 is unambiguous, in that, it even leads off with the phrase "in no event." And in my view, that particular phraseology is definitive and without exception.
The Arbitrator also found that, while not necessary to his conclusion, the evidence suggested that Economy and ProDrivers were joint employers.
In line with his conclusion, the Arbitrator ordered the Company to pay to unit employees the difference between their hourly rate and the twenty dollar per hour rate paid to the contract drivers.
Economy sought unsuccessfully in the District Court to vacate the award. (here) The Court found no basis to set aside the award. There was no allegation fraud and no claim that the issue wasn't properly before the arbitrator. Contrary to the Company's claim that the Arbitrator ignored the "unqualified" right to subcontract, the Court concluded that whether or not "correct," the Arbitrator's award was simply an interpretation of the relationship between the management rights provision and the temporary employee language. It found that, at its core, the Company's claim was simply a disagreement with the Arbitrator's interpretation of the Agreement.
The Company appealed, and the Sixth Circuit affirmed. Economy Linen and Towel Service, Inc. v. Teamsters Local 637. It noted the lenient standard of review of arbitration awards and, like the District Court, found that the award simply interpreted the interplay between several provisions of the Agreement. The Company's claim was simply one of "interpretive error" and was beyond the reach of the Court's review.
Concurring, Judge Batchelder wrote:
I write separately to say that I concur only because I am bound by law to do so. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 529 (2019) ("We have held that a court may not rule on the potential merits of the underlying claim that is assigned by contract to an arbitrator, even if [the arbitrator's decision] appears to the court to be frivolous." (quotation marks omitted)).
At best, in my view, the arbitrator's interpretation of the provisions of the CBA at issue here is not totally implausible. That it is clearly wrong is not enough.
Note: Several days after this decision, a different panel of the Sixth Circuit reversed a decision confirming an award of Arbitrator Michael Long, finding that the Arbitrator's remedy for a claimed change in retirees' health care benefits didn't "construe the contract" but improperly relied on a plan other than the one set forth in the cba. The dissenting judge observed "This case illustrates the difficulty of according appropriate deference to an arbitrator's decision. It is easy enough to say that we must affirm an arbitrator's decision so long as it was not "so untethered from the agreement that it casts doubt on whether he was engaged in interpretation." ... Perhaps it is sometimes less easy to apply this standard, but apply it we must. Unfortunately the majority did not do so here. Rather, it substitutes its judgment where the arbitrator's ought to remain." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. TRW Automotive U.S. LLC.
In his award, Arbitrator Roberts saw the dispute as being resolved by the "unambiguous language" of the agreement, specifically the definition of temporary "on call" employees.
Sustaining the grievance, the Arbitrator rejected the Company's reliance on its contractual right to subcontract. He found controlling the contractual provision that "In no event will a temporary or part time employee be hired at or given a higher rate than a full time employee." He noted that while the term "full time employee" was defined in the cba, "[t]here is no language found within the same Agreement specifically defining either a temporary or part-time employee in a similar context."
Concerning the Employer's right to subcontract, he found that right "unimpeded until one reaches the Hours of Work and Overtime provision." There temporary ("on-call") employees were defined as "individuals who are on call to work when regular full-time employees are not available to work or to augment the work force in peak periods." Arbitrator Roberts found this language "precisely defined" the ProDrivers in this case. He concluded:
The Parties clearly agreed to allow subcontracting, however, failed to specifically draw a distinction between a subcontracted employee and a temporary employee. The negotiators could have easily done so. However, the absence of any language in that regard makes it clear, at the face value of the Agreement, that a subcontract and a temporary employee are in fact, one in the same. And Article 6.08 is unambiguous, in that, it even leads off with the phrase "in no event." And in my view, that particular phraseology is definitive and without exception.
The Arbitrator also found that, while not necessary to his conclusion, the evidence suggested that Economy and ProDrivers were joint employers.
In line with his conclusion, the Arbitrator ordered the Company to pay to unit employees the difference between their hourly rate and the twenty dollar per hour rate paid to the contract drivers.
Economy sought unsuccessfully in the District Court to vacate the award. (here) The Court found no basis to set aside the award. There was no allegation fraud and no claim that the issue wasn't properly before the arbitrator. Contrary to the Company's claim that the Arbitrator ignored the "unqualified" right to subcontract, the Court concluded that whether or not "correct," the Arbitrator's award was simply an interpretation of the relationship between the management rights provision and the temporary employee language. It found that, at its core, the Company's claim was simply a disagreement with the Arbitrator's interpretation of the Agreement.
The Company appealed, and the Sixth Circuit affirmed. Economy Linen and Towel Service, Inc. v. Teamsters Local 637. It noted the lenient standard of review of arbitration awards and, like the District Court, found that the award simply interpreted the interplay between several provisions of the Agreement. The Company's claim was simply one of "interpretive error" and was beyond the reach of the Court's review.
Concurring, Judge Batchelder wrote:
I write separately to say that I concur only because I am bound by law to do so. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 529 (2019) ("We have held that a court may not rule on the potential merits of the underlying claim that is assigned by contract to an arbitrator, even if [the arbitrator's decision] appears to the court to be frivolous." (quotation marks omitted)).
At best, in my view, the arbitrator's interpretation of the provisions of the CBA at issue here is not totally implausible. That it is clearly wrong is not enough.
Note: Several days after this decision, a different panel of the Sixth Circuit reversed a decision confirming an award of Arbitrator Michael Long, finding that the Arbitrator's remedy for a claimed change in retirees' health care benefits didn't "construe the contract" but improperly relied on a plan other than the one set forth in the cba. The dissenting judge observed "This case illustrates the difficulty of according appropriate deference to an arbitrator's decision. It is easy enough to say that we must affirm an arbitrator's decision so long as it was not "so untethered from the agreement that it casts doubt on whether he was engaged in interpretation." ... Perhaps it is sometimes less easy to apply this standard, but apply it we must. Unfortunately the majority did not do so here. Rather, it substitutes its judgment where the arbitrator's ought to remain." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. TRW Automotive U.S. LLC.
Sunday, March 3, 2019
Quick Hits - Use of force, lack of candor during an investigation, and a public policy challenge to an officer's reinstatement
Termination for excessive use of force converted to a suspension
Grievant, a Chillicothe, OH police officer, had been dismissed for allegedly hitting a prisoner, failing to turn on his body camera, and using inappropriate language.
Grievant had stopped a vehicle for failure to use a turn signal. After running the license plate, he learned there was an outstanding warrant for the vehicle's owner. The driver ran off and was subsequently arrested by other officers. Grievant went to the jail to have him sign the citation for failure to use a turn signal. The driver refused to sign, and after being informed that refusal could lead to an obstruction charge, refused again. Grievant responded "wrong fucking answer" and began to leave. The driver continued to yell at grievant, calling him " a fat black bastard." Grievant turned around, walked toward the driver and became "very demonstrative" toward the driver, using his hands and pointing his finger. The driver continued his verbal harassment and at one point video recorded by one of the jail guards shows grievant making a fist and then lowering his arm . Grievant left the jail and driver claimed grievant had assaulted him.
An internal investigation was conducted which concluded that grievant had struck the driver, had failed to de-escalate the situation, and had been dishonest during the investigation when he denied hitting the driver. Grievant's employment was terminated, and the dispute submitted to Arbitrator Jerry Sellman for resolution.
Arbitrator Sellman found that the evidence uncertain whether grievant actually struck the driver, but concluded that he did "graze" him. He noted that improper use of force "cannot ever be tolerated" by the Department:
Police officers are trained to handle abuse and maintain emotional stability. Police Officers must refrain from using coarse, violent, profane, or insolent language and they must avoid conduct that brings discredit or disgrace upon the Division of Police.
The Arbitrator found that grievant had violated these principles and that "[e]ven though he was racially provoked, his conduct was unjustified." He further found, however, that termination was too severe a penalty in this case and that a lesser suspension was appropriate:
Because he had never been disciplined for this type of behavior before and was a long-term, eighteen year employee of the Police Department, and also in light of the disciplinary treatment given other Police Officers for improper use of force, termination is unreasonable and arbitrary for the offenses committed under the circumstances of this case. Because the conduct of the Grievant was serious and involved violations of several Departmental Rules and Policies, a fifteen-day suspension is warranted.
Arbitrator Sellman's award can be found here. The City has appealed the award. City has appealed arbitrator report reinstating Chillicothe Officer Reggie Netter
Grievant's "insubordinate refusal" to respond accurately and completely during internal investigation improper, but termination too severe
Arbitrator Don B. Hays has converted the indefinite suspension (termination) of a Port Arthur, Texas police officer into a lengthy suspension.
The Port Arthur PD conducted an internal investigation concerning an allegation that a number of officers were engaging in
misconduct, including allegations that certain officers had "double dipped" i.e. performed private duty vehicle escorts while they were on the clock. During the course of the investigation, grievant was interviewed about his involvement with the off duty escort services, as well as with claims that he improperly accessed law enforcement data bases for non law enforcement purposes and assisted in presenting a false affidavit of probable cause to support getting access to cell phone records for non law enforcement reasons. The Department concluded that grievant had been intentionally "untruthful" in those interviews, and was uncooperative and evasive during the interviews. It terminated his employment.
Arbitrator Hays found that grievant had engaged in "multiple insubordinate acts and omissions." He found:
Judging from the “totality of [Grievant's] testimony," as accurately captured by the official court reporter, we cannot reasonably conclude that [Grievant] did not deliberately take refuge in what we have come to identify as the police officer's “code of silence.” However, in choosing to do so [Grievant] periodically engaged in what can only be described as a insubordinate refusal to testify completely and truthfully on several pivotal subjects, such refusal constituted, in our judgment, a serious violation of department rules and represent a patently obvious deliberate refusal to cooperate with the department's chosen investigator. All of which in our judgement was clearly and willfully intended to and did in fact disrupt and frustrate the department's official pre-discipline investigation -to us a clear example of actionable insubordinate conduct.
Nevertheless, he found termination "patently excessive." Recognizing the need to make a statement "regarding the continuing need for more honest, professional and dedicated approach among all other PAPD officers" the Arbitrator converted the termination to a suspension without back pay and noted it should be considered a "Final and unconditional (last chance) warning."
Arbitrator Hays' award can be found here.
Court rejects public policy challenge to officer's reinstatement
Grievant was alleged to have installed audio-video surveillance devices in the residence he shared with his soon to be ex-wife. One camera was installed in the kitchen and two in the master bedroom. He was alleged to have continued to access the devices after he moved out. He claimed to have installed and monitored the devices to protect himself against false allegations and to protect his children. The Department became aware of the devices and began an investigation. His employment was terminated by the Aurora, IL police department after the Chief concluded that grievant had committed a Class 4 felony by eavesdropping on his wife and that his actions were a "willful and wanton disregard for the law that [he] himself has taken an oath to uphold. "
An arbitrator reversed the termination and decided instead that a one year suspension was appropriate. The City sought to vacate the award as contrary to public policy, and the trial court agreed. It noted particularly that the arbitrator had made no finding as to whether grievant was likely to refrain from similar conduct in the future. The Union appealed, and the Appellate Court of Illinois has reversed, and confirmed the arbitrator's award:
We conclude that the arbitrator's award did not violate public policy. There was no contractual provision mandating termination of police officers for off-duty misconduct, and the arbitrator, in our view, made a rational finding that Wagner was amenable to discipline. ... The CBA contemplates various forms of discipline, specifically noting removal, suspension, and discharge as possible measures for findings of cause. The arbitrator noted that the remedy had to be severe enough that [Grievant] and the community knew that his behavior was not acceptable, but that it also had to take into account the circumstances. Specifically, the arbitrator noted [Grievant's] long work history, his good work performance, and the fact that he was going through "a difficult divorce and his emotions may have clouded his judgment." The arbitrator specifically found that termination would be too harsh and, instead, ordered a one-year suspension, which would not be considered creditable service for department seniority or pension purposes. As this summary of the arbitrator's findings shows, he fashioned an award that considered the seriousness of [Grievant's] acts but also the mitigating circumstances of the case, such as [his] work history and the divorce. "[A]n employee's amenability to discipline is a factual determination which cannot be questioned or rejected by a reviewing court."
The Court also concluded that the arbitrator had at least implicitly found that grievant was unlikely to re-offend. The City of Aurora v. The Association of Professional Police Officers
Arbitrator Hays found that grievant had engaged in "multiple insubordinate acts and omissions." He found:
Judging from the “totality of [Grievant's] testimony," as accurately captured by the official court reporter, we cannot reasonably conclude that [Grievant] did not deliberately take refuge in what we have come to identify as the police officer's “code of silence.” However, in choosing to do so [Grievant] periodically engaged in what can only be described as a insubordinate refusal to testify completely and truthfully on several pivotal subjects, such refusal constituted, in our judgment, a serious violation of department rules and represent a patently obvious deliberate refusal to cooperate with the department's chosen investigator. All of which in our judgement was clearly and willfully intended to and did in fact disrupt and frustrate the department's official pre-discipline investigation -to us a clear example of actionable insubordinate conduct.
Nevertheless, he found termination "patently excessive." Recognizing the need to make a statement "regarding the continuing need for more honest, professional and dedicated approach among all other PAPD officers" the Arbitrator converted the termination to a suspension without back pay and noted it should be considered a "Final and unconditional (last chance) warning."
Arbitrator Hays' award can be found here.
Court rejects public policy challenge to officer's reinstatement
Grievant was alleged to have installed audio-video surveillance devices in the residence he shared with his soon to be ex-wife. One camera was installed in the kitchen and two in the master bedroom. He was alleged to have continued to access the devices after he moved out. He claimed to have installed and monitored the devices to protect himself against false allegations and to protect his children. The Department became aware of the devices and began an investigation. His employment was terminated by the Aurora, IL police department after the Chief concluded that grievant had committed a Class 4 felony by eavesdropping on his wife and that his actions were a "willful and wanton disregard for the law that [he] himself has taken an oath to uphold. "
An arbitrator reversed the termination and decided instead that a one year suspension was appropriate. The City sought to vacate the award as contrary to public policy, and the trial court agreed. It noted particularly that the arbitrator had made no finding as to whether grievant was likely to refrain from similar conduct in the future. The Union appealed, and the Appellate Court of Illinois has reversed, and confirmed the arbitrator's award:
We conclude that the arbitrator's award did not violate public policy. There was no contractual provision mandating termination of police officers for off-duty misconduct, and the arbitrator, in our view, made a rational finding that Wagner was amenable to discipline. ... The CBA contemplates various forms of discipline, specifically noting removal, suspension, and discharge as possible measures for findings of cause. The arbitrator noted that the remedy had to be severe enough that [Grievant] and the community knew that his behavior was not acceptable, but that it also had to take into account the circumstances. Specifically, the arbitrator noted [Grievant's] long work history, his good work performance, and the fact that he was going through "a difficult divorce and his emotions may have clouded his judgment." The arbitrator specifically found that termination would be too harsh and, instead, ordered a one-year suspension, which would not be considered creditable service for department seniority or pension purposes. As this summary of the arbitrator's findings shows, he fashioned an award that considered the seriousness of [Grievant's] acts but also the mitigating circumstances of the case, such as [his] work history and the divorce. "[A]n employee's amenability to discipline is a factual determination which cannot be questioned or rejected by a reviewing court."
The Court also concluded that the arbitrator had at least implicitly found that grievant was unlikely to re-offend. The City of Aurora v. The Association of Professional Police Officers
Sunday, February 24, 2019
Double jeopardy, public policy and a filing on the Seattle consent decree
Dismissal overturned because of suspension for same offense
Arbitrator Michael Paolucci sustained, in substantial part, a grievance filed on behalf of a Euclid, Ohio police officer. The City of Euclid, Ohio and Fraternal Order of Police Lodge 18.
The grievances involved three separate incidents, all arising from grievant's off duty conduct and included allegations of domestic violence, violation of a protective order and theft or failure to pay for certain appliances grievant allegedly took from a house he was renting. Arbitrator Paolucci found that two of the three incidents was either unproven or termination too severe for the alleged offenses. On the third, the arbitrator found that grievant's plea of guilty to a charge of persistent disorderly conduct made serious discipline "fair." However, because the Chief had already suspended grievant for 15 days, the limit of the Chief's disciplinary authority, the subsequent action of the Mayor terminating grievant was barred by principles of double jeopardy. He observed:
If the Chief believed that discharge was appropriate, it was incumbent on him to not issue discipline and to make the recommendation to preserve the issue. He did not do that here. He issued a very specific discipline that was directly responsive to the alleged offense. He issued discipline that was the maximum permitted under his authority, and he did so even though he believed harsher discipline was justified. Despite this belief, he acted with finality. This was not discipline pending or conditioned on further investigation. It was the maximum allowed, it was in response to allegations, it was after a full and complete investigation, and it was with the full authority allowed. Based on all the foregoing, it must be found that the City's administrative method exposed the Grievant to double jeopardy. He was disciplined first for fifteen (15) days, and was then also discharged.
It is fair to recognize that employees are often “suspended pending discharge” or “suspended pending investigation.” That is not what occurred here. As noted, the discipline was formalized, imposed and completed; and only then was it referred to the Mayor for additional consideration. If the Chief thought discharge was appropriate, then a full and final discipline should not have been issued. Based on the record submitted here, the procedure was improper and violated just cause standards.
Arbitrator Paolucci upheld the fifteen day suspension originally imposed by the Chief.
The City argues that the court of appeals correctly held that enforcing this arbitration award violates "public polic[ies] in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force" and "against police officers using excessive force" and would interfere with the City's "legal obligation" to enforce conduct standards for its police officers. City of Richfield, 910 N.W.2d at 477. The Union argues that the court of appeals focused unduly on Kinsey's conduct rather than on enforcement of the arbitration award, and reinstatement of Kinsey does not violate any public policy. We agree with the Union.
Assuming without deciding that a public-policy exception permits courts to vacate arbitration awards, the facts here do not support applying the exception. It is difficult to conclude that the arbitration award violates public policy given the finding that excessive force was not used. Kinsey's failure to report does not provide a basis for applying the public-policy exception because the arbitrator found that, even though Kinsey should have reported the incident, the City's policy was not clear on that question. The factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award on the basis of a rarely used public-policy exception.
Arbitrator Michael Paolucci sustained, in substantial part, a grievance filed on behalf of a Euclid, Ohio police officer. The City of Euclid, Ohio and Fraternal Order of Police Lodge 18.
The grievances involved three separate incidents, all arising from grievant's off duty conduct and included allegations of domestic violence, violation of a protective order and theft or failure to pay for certain appliances grievant allegedly took from a house he was renting. Arbitrator Paolucci found that two of the three incidents was either unproven or termination too severe for the alleged offenses. On the third, the arbitrator found that grievant's plea of guilty to a charge of persistent disorderly conduct made serious discipline "fair." However, because the Chief had already suspended grievant for 15 days, the limit of the Chief's disciplinary authority, the subsequent action of the Mayor terminating grievant was barred by principles of double jeopardy. He observed:
If the Chief believed that discharge was appropriate, it was incumbent on him to not issue discipline and to make the recommendation to preserve the issue. He did not do that here. He issued a very specific discipline that was directly responsive to the alleged offense. He issued discipline that was the maximum permitted under his authority, and he did so even though he believed harsher discipline was justified. Despite this belief, he acted with finality. This was not discipline pending or conditioned on further investigation. It was the maximum allowed, it was in response to allegations, it was after a full and complete investigation, and it was with the full authority allowed. Based on all the foregoing, it must be found that the City's administrative method exposed the Grievant to double jeopardy. He was disciplined first for fifteen (15) days, and was then also discharged.
It is fair to recognize that employees are often “suspended pending discharge” or “suspended pending investigation.” That is not what occurred here. As noted, the discipline was formalized, imposed and completed; and only then was it referred to the Mayor for additional consideration. If the Chief thought discharge was appropriate, then a full and final discipline should not have been issued. Based on the record submitted here, the procedure was improper and violated just cause standards.
Arbitrator Paolucci upheld the fifteen day suspension originally imposed by the Chief.
Minnesota Supreme Court rejects public policy challenge to reinstatement of police officer
Reversing the Court of Appeals, the MN Supreme Court has found no public policy basis for vacating an arbitrator's award reinstating an officer who had been dismissed for allegedly failing to report his use of force. City of Richfield v. Law Enforcement Labor Services, Inc. The Court held:
Assuming without deciding that a public-policy exception permits courts to vacate arbitration awards, the facts here do not support applying the exception. It is difficult to conclude that the arbitration award violates public policy given the finding that excessive force was not used. Kinsey's failure to report does not provide a basis for applying the public-policy exception because the arbitrator found that, even though Kinsey should have reported the incident, the City's policy was not clear on that question. The factual findings of the arbitrator, findings that we give deference to, do not support overturning the arbitration award on the basis of a rarely used public-policy exception.
The Court further held that the award did not undermine the Department's authority to enforce its policies, noting that the Arbitrator did uphold discipline (short of termination) because of the officer's failure to report the incident.
The Court of Appeals decision is discussed here.
Community Police Commission response to Seattle OSC
Last week's post addressed the response filed by the Department of Justice to a Judge's inquiry whether Seattle was in compliance with a consent decree concerning police use of force. Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline. The City's Community Police Commission has now filed its own response. It challenges the analysis of DOJ and is critical of what it describes as the heightened standard of review by arbitrators set forth in the City's most recent cba with the police union. It requests the Court "to convey that the Consent Decree will not be resolved until the City establishes that the accountability system reforms have in fact been secured."
The CPC's position is summarized in an article Citizen panel accuses Seattle police of backtracking on reforms, violating federal agreement, and the submission to the Court is available here.
Community Police Commission response to Seattle OSC
Last week's post addressed the response filed by the Department of Justice to a Judge's inquiry whether Seattle was in compliance with a consent decree concerning police use of force. Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline. The City's Community Police Commission has now filed its own response. It challenges the analysis of DOJ and is critical of what it describes as the heightened standard of review by arbitrators set forth in the City's most recent cba with the police union. It requests the Court "to convey that the Consent Decree will not be resolved until the City establishes that the accountability system reforms have in fact been secured."
The CPC's position is summarized in an article Citizen panel accuses Seattle police of backtracking on reforms, violating federal agreement, and the submission to the Court is available here.
Sunday, February 17, 2019
Department of Justice says Seattle not violating consent decree on police use of force - new burden of proof language no impediment to effective discipline
After an arbitrator overturned the termination of a Seattle police officer accused of punching a handcuffed suspect (award), the District Court judge overseeing a consent decree concerning police use of force issued an Order to Show Cause questioning whether the City was meeting its obligation to maintain effective compliance with the terms of the decree. Specifically, the Court requested a response on several questions, including:
Whether the events surrounding the [Disciplinary Review Board's] decision to reinstate an SPD officer who punched a hand-cuffed subject who was sitting in a patrol car, and the new CBA's rejection of aspects of the Accountability Ordinance—including those aspects that would have replaced the DRB with the PSCSC and provided for a different standard of review—should lead the court to conclude that the City and the SPD have failed to maintain full and effective compliance with the Consent Decree during Phase II?
The US Department of Justice has responded, (here) expressing its position that the particulars of an individual case, which took place prior to the time designated to evaluate compliance, could not demonstrate the City's noncompliance. It noted that the City had taken action against the officer, and that "one incident is not necessarily reflective of a system-wide problem" and that the Department's rules and systems designed to catch and correct individual issues appeared to be working as intended.
It also noted that while it had initially expressed concern about the standard of review for disciplinary actions included in the most recent cba, after further review it found no basis to challenge it.
The DOJ noted that prior to 2008 the applicable cba provided that discipline would be imposed only with just cause, but did not specify any burden of proof to be used.
In 2008, a new cba added language creating a presumption of termination for officers found to have engaged in dishonesty, but also provided that the Department must prove dishonesty "by clear and convincing evidence."
In preparation for a new cba in 2018, the City submitted proposed language to the Court, and the Court asked for the DOJ's opinion. The DOJ asserted that the addition of a "clear and convincing" burden "without any clear basis" could potentially undermine public confidence. It later noted, however, that this suggestion was in error, since "the use of the clear and convincing standard (1) was not new; and (2) had a clear basis for inclusion." In any case, however, the final 2018 cba language on discipline eliminated specific reference to a particular standard. The new language read:
The standard of review and burden of proof in labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. - more than a preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.
After reviewing prior arbitration awards furnished by the City (Exhibits B,C,D,E,F, and G) DOJ found that this heightened standard had been in effect for some time as part of the "common law of arbitration" and concluded that the new language would not make disciplining officers more difficult than in the past and presented no conflict with the consent decree.
Whether the events surrounding the [Disciplinary Review Board's] decision to reinstate an SPD officer who punched a hand-cuffed subject who was sitting in a patrol car, and the new CBA's rejection of aspects of the Accountability Ordinance—including those aspects that would have replaced the DRB with the PSCSC and provided for a different standard of review—should lead the court to conclude that the City and the SPD have failed to maintain full and effective compliance with the Consent Decree during Phase II?
The US Department of Justice has responded, (here) expressing its position that the particulars of an individual case, which took place prior to the time designated to evaluate compliance, could not demonstrate the City's noncompliance. It noted that the City had taken action against the officer, and that "one incident is not necessarily reflective of a system-wide problem" and that the Department's rules and systems designed to catch and correct individual issues appeared to be working as intended.
It also noted that while it had initially expressed concern about the standard of review for disciplinary actions included in the most recent cba, after further review it found no basis to challenge it.
The DOJ noted that prior to 2008 the applicable cba provided that discipline would be imposed only with just cause, but did not specify any burden of proof to be used.
In 2008, a new cba added language creating a presumption of termination for officers found to have engaged in dishonesty, but also provided that the Department must prove dishonesty "by clear and convincing evidence."
In preparation for a new cba in 2018, the City submitted proposed language to the Court, and the Court asked for the DOJ's opinion. The DOJ asserted that the addition of a "clear and convincing" burden "without any clear basis" could potentially undermine public confidence. It later noted, however, that this suggestion was in error, since "the use of the clear and convincing standard (1) was not new; and (2) had a clear basis for inclusion." In any case, however, the final 2018 cba language on discipline eliminated specific reference to a particular standard. The new language read:
The standard of review and burden of proof in labor arbitration will be consistent with established principles of labor arbitration. For example, and without limitation on other examples or applications, the parties agree that these principles include an elevated standard of review (i.e. - more than a preponderance of the evidence) for termination cases where the alleged offense is stigmatizing to a law enforcement officer, making it difficult for the employee to get other law enforcement employment.
After reviewing prior arbitration awards furnished by the City (Exhibits B,C,D,E,F, and G) DOJ found that this heightened standard had been in effect for some time as part of the "common law of arbitration" and concluded that the new language would not make disciplining officers more difficult than in the past and presented no conflict with the consent decree.
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