Reinstatement of police officer who used "unreasonable and unnecessary" force not violative of public policy

Grievant was employed as a police officer for the City of Owasso, OK. His employment was terminated after the City accused him of engaging in excessive force in violation of Department policies in connection with the arrest and transportation of an individual. After a hearing, Arbitrator Edward Valverde concluded that the evidence established that while the officer had used "unreasonable and unnecessary force," the absence of evidence that the subject was injured precluded a finding that the force was excessive. In an award discussed here, Arbitrator Valverde found the discipline excessive and overturned the termination, reducing the discipline to a written warning.

The City sought to vacate the award on the grounds, inter alia, that reinstatement of an officer found to have engaged in such conduct violated the public policy of Oklahoma. The trial court agreed, concluding that grievant's conduct showed that his continued employment "poses a special risk of injury, physical and psychological, to citizens, and, if he is allowed reinstatement, the department will be faced with explaining why Owasso allows abusive conduct by its officers, which is against the law."

The Oklahoma Court of Civil Appeals has now reversed that decision, effectively enforcing the arbitrator's award. Initially, the Court observed that any decision of an arbitrator adverse to the position of the City might have some "fallout", but that it was "not the function of the court to protect the City from the consequences of the bargained for arbitration process."  The Court further concluded:

The parties clearly bargained for an arbitrator's interpretation of the CBA, and so long as the arbitrator remained true to the essence of the agreement, his decision should not be disturbed. More specifically, the parties bargained for the arbitrator's construction of the term "just cause" as used in the CBA, and, although reasonable people might differ on the appropriate discipline to be imposed, the CBA placed no limitation on the arbitrator's authority to craft a remedy for [grievant's] use of unreasonable and unnecessary force different from the decision of the City to terminate his employment.

Contrary to the lower court, and the dissenting judge, the Court of Civil Appeals found nothing in the criminal statues defining assault, or the statutory definition of excessive force, that would serve as an impediment to reinstatement

The Tulsa World reports on the decision, and links to the Court's opinion, here.

CBA's non-discrimination clause compels County to recognize out of state same sex marriage

The cba between the Ohio Public Utilities Commission and the Ohio Civil Service Employees Association provides for bereavement leave in a variety of circumstances. One of those circumstances was for the death of "mother-in-law" or "father-in-law". Two unit employees, each of whom was married in an out of state ceremony to a same sex spouse, sought leave under this provision. The County denied the requests, maintaining that because Ohio law limited  marriage to unions between a man and a woman, same sex partners were not "spouses", and therefore the partner's parent did not qualify as an in law. The Union grieved the denial, arguing that federal law required the state to treat grievants' marriage was it would that of opposite sex couples. In particular, the Union relied on language in the cba's non-discrimination provision that "Neither the Employer nor the Union shall discriminate in a way inconsistent with the laws of the United States or the State of Ohio on the basis of ... sexual orientation ...." It also argued that because the cba used the terms spouse as well as significant other, those terms should be interpreted to be interchangeable.

Arbitrator Sarah R Cole has issued an award, relying on the Supreme Court's decision in United States v. Windsor, upholding the Union's grievance. Noting the non-discrimination provision's reference to federal law, Arbitrator Cole concluded:

Since Windsor was decided, every federal district court considering the impact of Windsor on state defense of marriage acts have issued opinions supporting the rights of same-sex partners to have their valid out-of-state marriages recognized for rights and benefits purposes. ... Thus, current federal law requires the State of Ohio to recognize out-of-state marriages or civil unions. ...
As a result, the Grievants' partners must be considered "spouses" for purposes of applying the CBA's bereavement leave provisions.

In light of her decision on this point, the Arbitrator found it unnecessary to consider the Union's alternate argument.


OCSEA links to Arbitrator Cole's Award (No. 1129)  here.

Sixth Circuit: Claimed breach of settlement agreement must be pursued through grievance process, not litigation

UPS and Teamsters Local 480 entered into a settlement agreement resolving a dispute about the assignment of work to employees in the category of "shifters". Thereafter, the Union alleged that UPS had failed to abide by the settlement and brought suit in District Court to enforce the agreement. UPS moved to dismiss the complaint, arguing that the dispute must first be pursued through the parties' grievance and arbitration procedures. The District Court agreed with UPS and dismissed the complaint. A panel of the Sixth Circuit, with one dissent, has now affirmed that decision.

Pointing to the broad definition of "grievance" contained in the parties' cba, the Court concluded that:

The Union and UPS entered into a CBA that provides that "any controversy, complaint, misunderstanding or dispute" that concerns "interpretation, application or observance" of the CBA "shall be handled" in accordance with the CBA's grievance procedures. The parties agree that UPS's alleged breach of the Settlement Agreement constitutes a violation of the CBA. Accordingly, the Union must use the CBA's grievance procedure before seeking judicial relief. Because the Union failed to state a claim under the CBA, we AFFIRM the district court's judgment dismissing the complaint.

The dissent would have overturned the lower court's decision, based on its conclusion that whether UPS breached the settlement agreement did not constitute a dispute as to the interpretation, application or observance of the cba.

The Court's decision can be found here.

Reinstatement but no back pay- Does vacation accrue during time off?

Arbitrator Joseph Daly has issued an award clarifying his remedial orders in two prior cases. In both cases, Arbitrator Daly ordered the grievants reinstated but denied back pay and benefits from the time of termination until reinstatement and further provided that grievants would return with the same seniority and benefits that were receiving on the date of termination.

Following their reinstatement, the Union filed a new grievance on their behalf, alleging that they had not been allocated their proper vacation while on suspension. It relied, in part, on language in the cba that "No discipline by suspension shall be administered to any member of the Local Union which shall impair his/her seniority rights." The employer denied the grievance, maintaining that the dispute was simply one of interpreting the arbitrator's award, and that in any case, since accrued vacation had been paid out at the time of termination, allocation of vacation for their time off would put grievants  in a better position than employees who had not been terminated.

Observing that the dispute involved "a collision between reason and equity," Arbitrator Daly rejected the Union's position. He noted:

When the arbitrator returned [Grievants] to their jobs and overturned the terminations, he intended to make clear by the remedy that each had done something very wrong. The long-term suspensions with “no back pay or benefits from the time [he/she] was terminated up to [his/her] return was intended not to reward either for their behavior.” This arbitrator did not intend to allow the accrual of vacation time during a long time suspension while not providing “service” to the company. While the contract makes clear that upon return the employee returns with the same seniority, there is nothing in the contract that says that the employee should accrue vacation time while not providing any “service” to the company. Equity cannot allow the contract to be interpreted to allow accrual of vacation time while not providing “service” and facing a long-term suspension for the behavior of the employee. This arbitrator did not intend for a “double payment” or a “windfall” to either. To allow [Grievants] credit for vacation purposes for the period of their unpaid suspensions is directly contrary to the language of the awards. ...

Arbitrator Daly rejected the Union's position that the contract clearly and unambiguously provided that only service and seniority determine vacation accrual. While agreeing that the cba provided that grievants would not lose seniority when they return from suspension, he found "nothing in the contract that says they are providing 'service' and do not lose the accrual of that service while on long term suspension."

Arbitrator Daly's Award in Xcel Energy and IBEW Local 23 can be found here.

Complaint under NY Health Care Whistleblower Law barred by arbitrator's award finding just cause for termination

The New York Supreme Court for Kings County has granted a Motion to Dismiss a Whistleblower complaint filed under the State's Health Care Whistleblower Law. While concluding that plaintiff was not an "employee" as defined in the statute, the Court also determined that the complaint was barred by an arbitrator's award which found plaintiff's termination to be for just cause.

Plaintiff was employed by Wycoff Heights Medical Center as a pharmacist. Her complaint alleged that her employment had been terminated in retaliation for her complaints of unsafe conditions in the pharmacy. The Hospital moved to dismiss the complaint on a number of grounds, including a prior arbitration award under the union contract covering plaintiff in which the arbitrator determined the termination was for just cause.

Agreeing with the Hospital, the Court determined:

[T]he prior arbitration award between plaintiff's union and Wycoff determined that the plaintiff's termination was for just cause, and not based upon her "exercise of any rights" under Labor Law Sec. 741 .... After a full hearing, the arbitrator found that plaintiff was culpable for misconduct on July 30, 2011, and concluded that "when evaluated as an additional incident in a sequence of uncooperative behavior justifying progressively severe discipline for recalcitrance and other unprofessional conduct [the Hospital] was justified in imposing increasing levels of substantial discipline, up to and including termination." Thus, as Wycoff argues, its decision to terminate plaintiff was predicated upon a legitimate, independent and non-retaliatory reason, namely plaintiff's culpable misconduct on July 30, 2011 and her past uncooperative behavior, rather than on any complaints plaintiff may have made about safety in the pharmacy...."

The Court rejected plaintiff's contention that she should not be barred from pursuing her whistleblower complaint since she was not a "direct party" to the arbitration, holding that a union arbitrating a grievance on behalf of a grievant acts as an agent of the grievant and the grievant is bound by all claims decided in the arbitration. This was true, the Court determined, even though grievant had not raised her allegations of unsafe conditions in the pharmacy during the arbitration.

The court's decision can be found here.

Sexual conduct between teachers on school premises insufficient to support termination

The New York Appellate Division has concluded that the termination of two teachers accused of engaging in sexual activity on school premises, upheld by two arbitrators, was "shockingly disproportionate" to the misconduct.

The two teachers had returned to the school after dinner to attend a school musical competition. While the performance was underway, the two were discovered in an upstairs classroom. The school asserted that they were partially undressed and engaging in what appeared to be sexual behavior. The teachers denied any sexual impropriety and claimed that one had been rendering medical assistance to the other.

Arbitrators upheld the dismissal of both teachers, and the matter was appealed to the courts. In both cases, the Appellate Division found that termination of employment was too severe. Essentially accepting the arbitrators' findings that the two had engaged in the conduct alleged, the court nevertheless concluded that termination was unwarranted.  In both cases, the Court observed:

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake ... Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner's engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship or engaged in inappropriate behavior with a student ...

Nor did the Court find that the extensive publicity the incident engendered justify termination, noting:

While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination

Accordingly the court vacated the penalty of termination and remanded the cases for imposition of a lesser penalty.

The Court's opinions can be found here and here.

Management rights, past practice and arbitrability

The Texas Fourteenth Court of Appeals has reversed the decision of a Texas District court and ordered the City of Orange to arbitrate a dispute about the involuntary assignment of a firefighter to the position of Fire Marshal.

The Orange Association of Firefighters claimed that the Chief had violated the parties' cba when he made an involuntary assignment rather than seeking volunteers. The Union maintained that the Chief's action was a deviation from past practice, and breached the "maintenance of standards" provision of the contract. That provision carried forward all economic benefits, privileges and working conditions in effect when the contract was signed unless continuation adversely interfered with normal operations of the fire department or was contrary to the cba. The City maintained that the contract's management rights clause reserved to the City the right to determine "the assigned work of employees" and the authority to "assign employee[s]."

When the City refused to submit the dispute to arbitration, the Union filed a declaratory judgment action seeking to compel arbitration. The District Court declined to compel arbitration, finding that the cba provided for the City's right to order an employee to accept the Fire Marshal position.

On the Union's appeal, the Court of Appeals reversed and ordered the City to submit the dispute to arbitration.

The Court noted that, while "the strong policy in favor of arbitration cannot serve to stretch a contractual clause beyond the scope intended by the parties," the dispute was properly one to be decided by an arbitrator. It observed:

The Association does not dispute the City’s contractually reserved rights to assign employees or determine the assigned work of employees, except as specifically limited by the Agreement. However, the Association’s grievance alleges the City’s violation of the Agreement’s "maintenance of standards" provision by altering its past practices of filling the position of Fire Marshal by voluntary assignment.
***
Interpreting the Agreement to decide how these provisions interact is a matter that the parties expressly agreed to submit to a grievance and arbitration procedure. When, as in this case, the Agreement’s grievance procedures are broad, as encompassing "[a]ny controversy between the City and the [Association] or any employee concerning the interpretation, enforcement, or application of any provision of this Agreement," we presume the Association’s grievance is arbitrable absent any express provision excluding the particular grievance from arbitration.

Finding no express provision of the cba excluding a grievance challenging the City's claimed deviation from past practice from arbitration, the Court concluded that the dispute involved "interpretation, application or enforcement" of the cba and was properly subject to arbitration.

The Court's opinion can be found here.