CT court: Public policy compels termination of nursing home employee, arbitrator's award overturned

A Connecticut appeals court has reversed a lower court and has set aside an award reinstating a certified nurse assistant in a nursing home who had been dismissed for failing to timely report suspicion of abuse.

Grievant overheard a conversation between two other employees which she believed related to possible patient abuse. The other employees declined to and peak with her about this, and she attempted on her own to investigate the issue. Unsuccessful in her first attempt, Grievant, a couple of nights later, spoke with a patient who she believed had been the subject of the overheard conversation. Grievant went home and left a voice mail message for the facility's social worker reporting what she had learned and urging the social worker to contact the patient directly.

The facility subsequently conducted an investigation of the claim of abuse, and ultimately disciplined (with suspensions and final warnings) several employees who had either been involved in the incident or had failed to report it. It terminated the employment of Grievant, noting that she had two prior final warnings in her file
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  The Union (New England Health Care Employees Union, District 1199) grieved the termination and an arbitrator reduced the discipline to a 30 day suspension. The arbitrator agreed that there was a strong public policy protecting nursing home residents and that that policy included an obligation to promptly report patient abuse. Nevertheless he concluded that there were mitigating factors, including the fact that Grievant was the only employee who reported the incident (albeit in an untimely manner) and the concern that terminating an employee who did report, even if late, would create a disincentive to reporting.

The employer sought unsuccessfully to vacate the award as contrary to public policy. The appellate court reversed, concluding:

The award, requiring the reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her prior record of related disciplinary actions and two prior final warnings demonstrated her inability to meet the demands of the public policy of protection and reporting, violates that policy because, in the very words of the arbitrator, ‘‘any delay in reporting by a staff member leaves the residents at risk of possible further abuse by the alleged perpetrator; corrective action by [the plaintiff] to assure resident well-being inevitably is delayed if reporting by staff is delayed.’’

While noting that it was not holding that a single incident of patient abuse necessarily compelled termination, the Court noted that "because of a confluence of factors arising under the facts and circumstances of this case" the award mandating reinstatement violated public policy.  
The dissent maintained that the majority's opinion exceeded the appropriated scope of review and failed to give appropriate weight to the arbitrator's conclusion. The dissent noted:

The majority’s general invocation of the public policy relating to protection of patients from abuse ... has the unfortunate result of diminishing this court’s respect for and deference to the private arbitration process, and it also results in an expansion of the public policy exception from its intended narrow application in these circumstances. Taken to its logical conclusion, the majority sets forth a rule that requires an employer to terminate the employment of any employee who does not report a suspicion of elder abuse immediately, without consideration of any mitigating factors or whether the employer itself would be in violation of any public policy. ... I thus conclude that the broad expansion of this narrow exception is unwarranted, and not in the interest of employers or employees in this health care sector.

The Court's opinion can be found here, the dissent here.

Update - The Connecticut Supreme Court has reversed this decision and has upheld the arbitrator's award. The decision is discussed here.
 

Police discipline and public policy

Portland, OR police officer Ron Frashour was dismissed following his involvement in a fatal shooting of an individual who turned out to be unarmed. The City claimed that he had used excessive and unnecessary force in violation of the City's deadly force policies. Arbitrator Jane Wilkinson, in an award discussed here, upheld a grievance filed on his behalf and ordered him reinstated. Arbitrator Wilkinson concluded that Officer Frashour did not act unreasonably under the circumstances, and that there was no evidence that he had violated any City policy.

The award prompted controversy, Crowd protests arbitrator's decision to re-hire cop, and the City announced it would not comply with the award. The City maintained that the award was inconsistent with an Oregon statute providing "any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions....

In response to a charge filed by the Portland Police Association, the Oregon Employment Relations Board found that the City had committed an unfair labor practice by refusing to comply with the award. It rejected the City's public policy argument, noting that Arbitrator Wilkinson had found as a fact that Officer Frashour had not engaged in misconduct.

The City has now appealed that decision and briefs have been filed in the dispute. Portland Mercury: Police Union Answers City in Appeal over Frashour reinstatement. The City maintains that the Arbitrator improperly failed to give deference to the City's conclusion that its policies were violated.

The City argues in its appeal:

ERB erroneously began and ended its inquiry with the Arbitrator's finding that Officer Frashour did not engage in misconduct. It was the Arbitrator's refusal to afford deference to the determination of the Chief of Police that Officer Frashour's killing of an unarmed, non-resisting, emotionally distraught man, on whose welfare the police were trying to check, violated the City's deadly force policies, that failed to comply with public policy requirements. In other words, it was not so much what the Arbitrator decided, but rather how she decided it that violated public policy.

In its reply, the Portland Police Association argues:

The City suggests that if the Arbitrator agrees with the City's conclusion that Officer Frashour violated City use of force policies, then the Arbitrator's award is consistent with public policy. But if the Arbitrator disagrees with the City and holds that Officer Frashour did not violate any City policy, then her award violates public policy because she did not defer to the City's decision. In other words, the City argues that it can make an incorrect disciplinary decision, one that might be motivated by political concerns or driven by an inadequate investigation, and that its decision must be upheld by an arbitrator.

The Portland Mercury links to the briefs filed by the City (here) and the PPA (here).

Professor Henry Drummonds has written an article discussing the public policy exception to enforcement of arbitration awards. That article is discussed here.

Award reinstating police officer without License to Carry weapon confirmed

As noted in an earlier post, Arbitrator Phillip Dunn upheld the termination of a police officer after the Chief revoked his license to carry a weapon. Police officer who lost license to carry weapon properly terminated.  In contrast, according to a report in the Worcester Telegram, the Massachusetts Superior Court  confirmed an award of Arbitrator Roberta Golick reinstating an officer who had similarly been denied renewal of a license to carry. Ruling backs former Worcester officer accused of pointing gun at teens.

The officer had initially been terminated for allegedly pointing a handgun at three teenagers in his neighborhood while off duty. During the investigation of that incident his license to carry expired and the Police Chief declined to renew it. Arbitrator Richard Higgins overturned that termination (here), and the Massachusetts Appeals Court rejected the City's claim that that award violated public policy. O'Brien v. New England Police Benevolent Association, Local 911. 

After Arbitrator Higgins' award, the City again terminated grievant's employment, claiming in part that his lack of a license to carry disqualified him. It was this decision that Arbitrator Golick overturned. In her decision Arbitrator Golick observed:

... the Chief is not swayed by and disagrees with the facts found by Arbitrator Higgins relative to [grievant's] conduct in the Tory Fort Lane incident; the Chief stated publicly after the Higgins award that the Department would do everything it could do to prevent [grievant] from returning. How did it do that? First, it challenged the Higgins award in Court. Second, it launched a collateral attack on the officer’s qualifications to serve as a police officer by cutting off any legal route for him to be able to carry a gun. Ensuring that [grievant] could not secure a License to Carry was not merely an attempted end-run around Higgins’s directive to reinstate [rievant] to his position; it was and is an attempted end-run around the contract’s just cause provision. If all it takes for a department to permanently rid itself of an unwanted officer is to revoke the officer’s Chapter 140 §131 License to Carry a firearm and withdraw permission to carry a weapon under Chapter 41 § 98, then an officer’s contractual right not to be discharged except for just cause is meaningless. Just cause for dismissal is not established by the unadorned fact that a chief exercises his discretion to refuse to issue an employee a firearm.9 What is essentially the Department’s dissatisfaction with Arbitrator Higgins’s findings and ruling does not provide just cause under the collective bargaining agreement to discharge [grievant]. 

The City sought unsuccessfully to vacate Arbitrator Golick's award. According to the report, the Superior Court  concluded:

[T]he arbitrator found that the city did not have just cause to terminate [the officer] because he did not have a license to carry a firearm ...The arbitrator noted that the city had not shown that possession of a license to carry a firearm was a necessary job requirement for a Worcester police officer. The arbitrator further found that even if possession of a license to carry a firearm was a requirement of the job, the officer could waive such a requirement, and he had done so in the past.

The Appeals Court affirmed that decision (here), rejecting the City's claim that the award was contrary to public policy

The Daily Worcesteria links to Arbitrator Golick's award here.

[This post has been updated and revised]

Eighth Circuit rejects award finding just cause but awarding remedy.

A majority of the Eight Circuit has affirmed a District Court's decision vacating an arbitrator's award, concluding that he had found that the employer had just cause for the termination of the grievant but nevertheless reinstated him without back pay. Northern States Power Co. d/b/a Xcel Energy v. IBEW, Local 160.

 The Company had terminated the employment of grievant after learning through a background check that he had been convicted of "possession of a pornographic work involving a minor." The terms of grievant's probation included a prohibition on contact with minors. The Company maintained that they could not guarantee that grievant would have no contact with minors during his employment and, as a result, terminated his employment.

The Arbitrator concluded:

[T]he Local’s grievance is denied in part and sustained in part. To the extent that Mr. Snow was convicted of a serious crime that raises some very legitimate concerns on the part of the Management going forward, they have demonstrated justification for their decision. At the same time however, the Union has presented convincing evidence which sets forth a number of factors that existed which ultimately favor the imposition of a penalty less than the Grievant's dismissal.

The Company sought to set aside the award, and the District Court granted the employer's motion. The Eight Circuit affirmed, observing:

Here, the language of the arbitrator’s decision—specifically that NSP had “demonstrated justification” for its decision to terminate Snow—is sufficient to show that the arbitrator found the termination was supported by “just cause.” Having answered the first submitted question in the affirmative, the arbitrator had no authority to address the second question or to fashion a remedy different than the termination. Therefore, the district court properly vacated the arbitrator’s award for reaching beyond his authority under the CBA.

In reaching this conclusion, the Court noted with approval decisions from other circuits, including the Fifth Circuit's "implied just cause" cases (discussed here), holding that having found just cause an arbitrator was without authority to reduce the penalty.

The dissenting opinion argued that the arbitrator had made no finding of just cause, and that when read in context the arbitrator's award "cannot fairly be read to favor NSP".

APWU prevails in contracting arbitration

Arbitrator Stephen Goldberg has, in large part, sustained a grievance filed by APWU claiming the Postal Service misinterpreted contractual obligations concerning contracting.

The parties cba provides that before contracting certain work the Postal Service must weigh a number of factors, including public interest, cost, efficiency, availability of equipment, and qualifications of employees.

 Rejecting the position taken by the USPS that as long as it considered these factors it could contract work even if the cost of doing so is greater than keeping the work in house, Arbitrator Goldberg concluded that:

the Contracting MOU states:

             It is understood that if the service can be performed at a cost equal to or less than that of conntract service, when a fair comparison is made of all reasonable costs, the work will be performed in-house.

The Postal Service can no longer justify contracting out work that would be less expensive to keep in house on the ground that it has given due consideration to cost as well as the other Article 32.1 or 32.2 factors. To be sure, each of those factors must be considered, but If factors other than cost do not rule out keeping work in house, and the cost of keeping work in house would be less than contracting out, both the text and the bargaining history of the Contracting MOU require that the work be kept in house. 

The APWU reports on the case, Landmark Arbitration Award Reshapes California PVS Subcontracting, and links to Arbitrator Goldberg's award here.

City improperly terminated Union release agreement

A substantial reduction in the size of the police force did not constitute an emergency justifying the termination of the Local President's full time release from duty, according to an award by Arbitrator Joseph Licata.

The City and  PBA Local  were parties to a cba that provided:

The City agrees to full union release to the PBA President.  ...  A shirt and tie or suitable casual attire may be substituted for a police uniform. However, the uniform of the day shall be readily available in the event of an emergency that requires the PBA President to be utilized.  ...

This language had been incorporated into the cba as a result of an interest arbitration which adopted the Union's proposal verbatim.

 The City maintained that a significant reduction in funding, and a resulting layoff of approximately one third of the department, constituted an emergency justifying the reassignment of the PBA President to field duties. It  noted the increase in rapes, robberies and shootings in the city, as well as its frequent approval of President's release to attend to Union duties notwithstanding his assignment to field operations.

Rejecting the City's position, the Arbitrator concluded:

Whether by examining standard tools of contractual construction or the "emergency doctrine" as commonly understood in the labor profession, the City's position is untenable....

Looking to contractual intent, the Arbitrator observed:

Emergencies were understood as temporary events subject to Emergency Mobilization plans. As examples, emergencies included anticipated natural disasters, anticipated special events, e.g. large-scale parades, and unanticipated incidents requiring the temporary full or partial mobilization of the police department, ...

He also noted that the "Emergency Doctrine", a test sometimes used to assess a claim that an emergency privileged the suspension of contractual obligations, failed to support the City's position. Arbitrator Licata referred to a synthesis of the criteria for the doctrine developed by Arbitrator Kessleman;

1) Management must not be responsible for the emergency;
2) The emergency must involve a situation which threatens to impair operations materially;
3) The emergency must be of limited duration; and
4) Any violation or suspension of contractual agreements must be unavoidable and limited to the duration of the emergency.

In light of his determination that neither contractual intent nor the emergency doctrine privileged the City's action, Arbitrator Licata ordered the City to reassign the President to full union release duties, and to only deviate from that as an exception based upon an emergency necessitating his mobilization.

PBA Local 11 links to Arbitrator Licata's award here.

Workplace Bullying

Bullying  continues to emerge as a problem in the workplace, and has been identified as potentially the next major battleground in employment law. Growing Push to Halt Workplace Bullying (Sam Hananel at AP). Professor David Yamada's blog, Minding the Workplace, covers this issue extensively, and he recently summarized some of the legislative activity focused on enacting a Healthy Workplace bill in various states. Healthy Workplace Bill: March 2013 Update.  At least one management lawyer, (Michael Fox at Ogletree)  believes The March Towards a Bullying Cause of Action Continues.

In an award arising under an individual employment contract, Arbitrator Tim Bornstein has upheld the termination of the Superintendent of Schools in Groton, Connecticut for behavior found to be, at least in part, bullying.  The Superintendent's contract provided for termination for inefficiency or incompetency, insubordination against reasonable rules or orders of the Board, moral misconduct or "Other due and sufficient cause". According to the award, the Superintendent's termination "was based mainly on allegedly inappropriate conduct towards subordinates."

The School Board's policy provided:

The Groton Public Schools are committed to providing all personnel with a safe and supportive environment in which everyone behaves responsibly and respectfully towards others.
                                                        ...
Threats of harm to self or others, threatening behavior or acts of violence ... shall not be tolerated on district property or at activities under the jurisdiction of the school district. Every employee is expected to deal in a nonthreatening way with students, parents and other staff members.

Arbitrator Bornstein concluded that the evidence established that the Superintendent "violated both the letter and spirit of [the policy] on numerous occasions." Finding the policy "patently reasonable", the Arbitrator concluded that by "threatening, bullying and humiliating subordinates" the Superintendent was insubordinate against reasonable rules of the Board within the meaning of his contract. While finding no moral misconduct, the Arbitrator also concluded that the Superintendent "misused his authority as Superintendent by humiliating and abusing subordinates, all Board employees. Not only was his abusive treatment of subordinates itself grounds for discipline, but also it had the institutional effect of undermining the morale in the Superintendent's office."

Based on the evidence presented, the Arbitrator found "due and sufficient cause" for terminating his contract.

GrotonPatch reports on the decision and links to the arbitrator's award here.