Disciplinary Demotions- Two Recent Cases

Two recent cases discuss the use of demotion as a disciplinary vehicle for misconduct.

Arbitrator Anthony Vivenzio has issued an award overturning the demotion of a Portland, OR police Captain to the rank of Lieutenant. The demotion had been imposed because of grievant's conduct during a "road rage" incident in which grievant displayed his weapon, two incidents of alleged inappropriate touching of   employees, and his conduct during a Weingarten meeting in which he allegedly lost control of his temper. The initial proposed discipline had been termination, but following a "mitigation" hearing the Chief and Mayor decided to demote grievant rather than terminate his employment.

While finding that the grievant had committed the acts and exhibited the behaviors with which he had been charged, Arbitrator Vivenzio found the discipline imposed, which he described as an "indeterminate sentence" of demotion, to be without just cause. In rejecting the demotion the Arbitrator noted:

*** I, like many arbitrators, am interested in discipline that, while holding an employee accountable, promotes their future functioning in the workplace. Here, the Grievant has already experienced the personal embarrassment of working among his fellows for a significant period of time while openly downgraded to a lower rank. Further, several of the events at issue took place approximately 4 years ago, prompting a frustrated staffer to state that the (investigatory) file was “growing mold.” The most recent event took place more than 30 months ago.

A number of arbitrators have held that demotion for an indeterminate term is not discipline, but merely punishment, and have reversed such actions. Elkouri and Elkouri, Seventh Edition. Discipline, a concept to which just cause is allied, and to which the PPB subscribes, seeks the betterment and development of an employee which the employer hired, and promoted upon his satisfaction of rigorous standards, and in whom it has made significant investment. Cases for mere punishment do exist, but only in those cases where such a damaged relationship exists between employer and employee that its imposition is worth the damage to both the employer and employee. This is not that case. The record reflects that, following the Idaho incident, Grievant was retained by the Employer in positions requiring significant judgment and responsibility and performed successfully.

Instead, the Arbitrator concluded that a sixty day suspension was more appropriate.

Demotion was also an issue in an award issued by Arbitrator Nels Nelson. Arbitrator Nelson's award resolved grievances filed by three members of the Cleveland Police Department. The discipline arose out of the officers' conduct in connection with a police chase that ended with the fatal shooting of two individuals.

The City demoted a police Captain and a police Lieutenant, and terminated the employment of a police Sergeant. The FOP pursued each of these matters to arbitration. Arbitrator Nelson noted initially that while contracts typically give an employer the ability to suspend or discharge for just cause, the cba here explicitly provided that the City could also demote for just cause. 

With regard to the Captain and Lieutenant, the Arbitrator observed that the demotion resulted in a base pay reduction of 16.1%, equivalent to a 36 day suspension. He further noted that "[i]n each subsequent year, [they] faced the same penalty." Arbitrator Nelson found this penalty unduly severe. In both cases he determined that the demotion should remain in effect only until July 11, 2014, at which time the grievants would be restored to their former positions.

Regarding the dismissed Sergeant, Arbitrator Nelson found an absence of just cause for termination. However, finding that he had failed to meet his supervisory responsibility and "chose to sit idle for a number of minutes as the pursuit continued," the Arbitrator found "[t]he proper remedy is clear." He ordered the dismissed Sergeant reinstated as a patrolman until July 11, 2015, at which time he should be restored to his former position. 

In a footnote, Arbitrator Nelson acknowledged that reinstating grievant to a position in a different bargaining unit, represented by a different union, could cause "concern," but felt that "in the interest of fairness" the two unions should be able to resolve any issues that might arise. 

Oregon Live reports on the dispute addressed by Arbitrator Vivenzio here. His award is here.

WKYC reports on the dispute addressed by Arbitrator Nelson here. His award is here.

Updates: A Cuyahoga County Common Pleas Court Judge has rejected Cleveland's efforts to have the award of Arbitrator Nelson set aside.  Judge OKs arbitrator's ruling to rehire fired Cleveland police officer, reverse 2 demotions

 A disciplinary demotion of a Waterloo, IA police Lieutenant was partially overturned by Arbitrator Hugh Perry Arbitrator rejects permanent disciplinary demotion, upholds one year before restored to former position

Grievance over termination because of denial of unescorted access not subject to arbitration

Grievant was employed as an armed nuclear security officer at Exelon Generation Co.'s Oyster Creek nuclear generating facility in Forked River, N.J. After his employer discovered he had failed to identify a previous medical condition on a medical history questionnaire, ExGen's Access Authorization department began a review of his access status and ultimately denied him unescorted access. Grievant appealed this denial through the appeal procedure and, at the same time, filed a grievance. His appeal was denied and his employment was terminated because of his inability to have unescorted access to the facility. His grievance was also denied and the Union sought to pursue the dispute to arbitration. The Company refused to arbitrate and the Union brought an action seeking to compel arbitration.

The grievance procedure of the cba provided for the arbitration of differences or disputes but also provided "that issues involving the decision to grant or deny unescorted access under the access authorization program ... shall be resolved through the access authorization program appeal procedure, not through the grievance and arbitration procedure."

Despite this language, the Union claimed the provision was ambiguous, and that the employer had not shown the requisite "forceful evidence" of an intent to exclude the grievance from arbitration.

The court was not persuaded. It noted:

Regardless of why an employee ended up losing his unescorted access, that he lost it, and that discharge was based in some way on that loss of access (i.e. somehow "involve[d]" the loss of access) brings the dispute within the exclusion clause and thus renders it unarbitrable. This atom cannot be split.
***
Any suggestion that this state of affairs is somehow unfair is also unpersuasive: The question here, one must remember, is not whether review may be sought, but rather whether the parties agreed, as a matter of contract, to arbitrate this particular type of dispute. The CBA's language is unambiguous that they did not, and that, in essence, is the end of the matter.

Accordingly the court denied the Union's motion to compel and granted the employer's cross motion, dismissing the action.

The court's decision in United Government Security Officers of America v. Excelon Nuclear Security can be found here.

Other cases involving arbitration of disputes concerning unescorted access (one also involving Excelon) can be found here and here.

Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension

Background

Arbitrator Dennis McGilligan has sustained a grievance filed by the Illinois FOP on behalf of a Sheriff's Deputy whose employment was terminated following the alleged theft of two plants from a local park.

Grievant was on duty the night of May 4, 2012. When she stopped at a local park to use the rest room she noticed two plants near the entrance. Grievant testified she assumed they had been abandoned after some function in the park. She place one in her patrol vehicle, drove back to her residence and placed the plant in her driveway. Several days later grievant returned to the park, saw the other plant still there, picked it up and placed it by her front door. In fact, the plants had not been abandoned, but had been placed in the park as part of beautification project.

Following an investigation, grievant's employment was terminated, and she was subsequently prosecuted criminally for theft. At trial, she was acquitted of all charges.

The arbitrator's award

 The standard of proof 

 In reaching his decision, Arbitrator McGilligan first addressed the proper standard of proof to be applied. Agreeing with the Union, he concluded that the appropriate standard was one of "clear and convincing evidence." He found that this was the "appropriate standard of proof when the charges involve theft by a police officer" and that "Such a conclusion is consistent with the standard adopted by most arbitrators in disciplinary cases."

The taking of the plants  

Turning to the merits, the Arbitrator concluded that the Sheriff's Department had not met this test with regard to the allegation of theft. He found no basis to discredit grievant's testimony that she believed the plants had been abandoned, and noted that she had made no attempt to hide them. However, he did conclude that grievant had failed to demonstrate "common sense" in exercising her discretion to determine whether or not to report the plant as abandoned property, and in so doing had violated the Department's Policy on handling abandoned property. Accordingly, and noting she had appeared to have been treated more harshly than male employees who had committed infractions, Arbitrator McGilligan reduced the termination to a thirty day suspension

The post termination conduct

Approximately a year after her termination, (but prior to the arbitration hearing)  grievant entered an "Open Plea" to a charge of "retail theft" for an unrelated incident. The parties jointly described an open plea as an admission of guilt by the defendant, but a withholding of any judgment until the expiration of a period of supervision. If the defendant successfully completes a period of supervision, the underlying charge is dismissed.

At the arbitration hearing, the Department argued that the plea was relevant to grievant's credibility. According to the Arbitrator's award, the employer also maintained that the plea:

...is also relevant to the appropriate discipline in this case. The Employer believes that without question the conduct in question is more than sufficient to sustain the discharge. However, the Employer opines the subsequent theft conviction for conduct that occurred about a year later simply underscores that the Grievant is unfit for duty ever again as a Department Deputy. The Employer also opines that it will have a negative impact on her ability to testify in the future and will need to be disclosed to criminal defense attorneys.

In contrast, the Union argued that the plea should be given no consideration, and the decision should be limited to the reasons given at the time of discharge

After discussing the general principles concerning the impact of post termination conduct, the conditional nature of an open plea and the grievant's general reputation for honesty, the Arbitrator concluded:

...the Arbitrator believes that the Grievant should be disciplined for her post-discharge retail theft. While there is little in the record as to the circumstances of this theft, nevertheless, her behavior is disappointing. ... Therefore, the Arbitrator will impose a sixty (60) day suspension for her post-discharge misconduct. If she does not successfully complete the court supervision then she should serve a suspension from the date of her open plea to the date of her reinstatement.

The Employer's Appeal

According to a report in the Illinois Times (here), The Sheriff's Office has filed suit seeking to overturn the Arbitrator's award. The Sheriff's office claims that the Arbitrator "overstepped his bounds" when he ordered discipline in the shoplifting case. It claims it only brought up the shoplifting issue as a factor in assessing grievant's credibility. The report also notes that the Sheriff had apparently sought to have the Arbitrator reconsider his decision and limit back pay only to the period between the initial termination and the open plea, a request the Arbitrator denied.  It is now seeking to overturn the entire award because it believes the Arbitrator's decision in the plant case and the shoplifting case are "inexplicably intertwined."

The Illinois Times reports on the Arbitrator's decision here, and links to the Arbitrator's award here.

Update: According to a report in  the Illinois Times, a judge has overturned in large part the decision of Arbitrator McGilligan. The court remanded the dispute to the arbitrator with instructions to apply a preponderance of the evidence standard rather than a clear and convincing one. The court also determined that the Arbitrator erred in considering the shoplifting issue as a basis for discipline. Sticky-fingered deputy Judge overturns decision to keep her on the job.

Recent Developments-Quick Hits

Arbitrator overturns termination of police officer for claimed use of excessive force

Arbitrator Stanley Sergent has overturned the termination of a police officer in Sarasota FL who had been fired for alleged use of excessive force. Grievant had admittedly used several "empty-hand strikes" in an effort to control the individual he was attempting to arrest. The City maintained that the number of strikes, together with the absence of any time between them to determine compliance, rendered the use of force excessive. Initially Arbitrator Sergent noted that the Supreme Court has held that the test for whether the use of force is excessive must be determined from the perspective of a reasonable police officer on the scene, not "with the 20/20 vision of hindsight."  Arbitrator Sergent determined that grievant reasonably believed the subject was continuing to resist. He also found that while the City could have a more restrictive policy, it failed to demonstrate that grievant had violated that policy. While ordering grievant's reinstatement, the arbitrator did find that grievant's use of profane and abusive language and flagrant demonstration of anger and frustration was "clearly inappropriate,' warranting some punishment. Accordingly he replaced the termination with a thirty day suspension. The Sarasota Herald Tribune reports on the decision, Sarasota officer fired in Club Ivory beating to be reinstated, and links to Arbitrator Sergent's award here.

Student Assistance Coordinator who facilitated "refund" of drug transaction properly terminated

 Arbitrator Michael Peckler has upheld a determination of "conduct unbecoming" an educator who allegedly arranged a refund of a cash for marijuana transaction between students after one of the students complained of being shortchanged. After an extensive analysis of the conflicting claims, the Arbitrator concluded:

 [Grievant's] facilitation of the drug/cash exchange to make the controversy go away is contrary to the proactive, vigorous, front-line approach that is required of all teaching staff members. And her brokering of a refund between G.H. and J.C. combined with her position that she was going to report the students but for the school administration being too busy demonstrates such an egregious display of poor judgment and obfuscation that removal is the only appropriate remedy.

Arbitrator Peckler's award can be found here.


Arbitrator upholds suspension for false claim in grievance

Arbitrator Harry Crump has upheld a four day suspension imposed on a Blaine, MN police officer. Grievant had been issued a letter of reprimand for allegedly working private overtime while on call without arranging for appropriate coverage. The Union prepared a grievance on her behalf, which she signed. The grievance asserted that grievant had arranged for a named detective to cover her on call assignment. The City deemed this assertion to be unfounded, and imposed a suspension for grievant's alleged dishonesty. Arbitrator Crump found no evidence that the assertion was not "knowingly or deliberately untruthful" and denied the grievance. He explained:

The undersigned opine that there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.

Arbitrator Crump's award can be found here.

Court upholds reinstatement of police office denied license to carry a weapon.

The Massachusetts Appeals Court has affirmed the enforcement of the award of Arbitrator Roberta Golick reinstating a police officer terminated after the Police Chief for the City of Worcester, Mass. refused to issue him a license to carry a weapon. Grievant had initially been terminated following an altercation at his home in which he pointed his weapon at three teenagers. While the incident was being investigated, the Chief purported to suspend grievant's license to carry. Ultimately the Chief denied grievant a license, deeming him an "unsuitable person."

 Arbitrator Richard Higgins sustained a grievance over the termination and ordered the grievant's reinstatement. After that award, the Chief again terminated the employment of grievant, in part because he did not possess a license to carry. The Union again grieved, and Arbitrator Golick ordered his reinstatement. These two awards are discussed here.

The city sought to set aside Arbitrator Golick's award, but their efforts were rejected by the superior court. The Appeals Court has now affirmed.

The Court summarized the award of Arbitrator Golick as follows:

The arbitrator concluded that `[j]ust cause for dismissal is not established by the unadorned fact that a chief exercises his discretion to refuse to issue an employee a firearm,' because, if that were all that was needed to dismiss a police officer, the officer's `contractual right not to be discharged except for just cause is meaningless.' The arbitrator further concluded that the police chief `may be free to exercise his claimed authority to refuse to permit Rawlston to carry a weapon. But in the realm of just cause, which is the contractual standard for dismissal, the City's reliance on an alleged `disqualification' that the Chief himself decided to impose so as to prevent Rawlston from reinstatement was capricious and does not meet the test of contractual fairness.' 

Like the Superior Court, the Appeals Court found no public policy issue warranting setting the award aside. As it had in connection with the appeal of the initial decision of Arbitrator Higgins (O'Brien v. New England Police Benevolent Assn., Local 911), the Court found "the factual and legal underpinnings necessary to the application of the public policy exception are lacking."

The Court's opinion in City of Worcester v. New England Police Benevolent Assn. Local 911 can be found here.

Can an arbitrator disregard a last chance agreement?

Deciding what it describes as a case involving "unusual labor arbitration issues," the Eighth Circuit  overturns a district court and substantially confirms an arbitrator's award.

Grievant was employed by Associated Electric Cooperative, Inc. After being selected for a random drug test, grievant informed the Company that the test would show a positive result. He explained that he had smoked marijuana with family members while on leave to attend his brother's funeral. Grievant declined union representation, signed a standard form last chance agreement, and was suspended to undergo drug dependency treatment. When the test results were returned a little more than a week later, however, they were negative. Nevertheless, the Company kept grievant on the last chance agreement and continued his suspension and treatment. During his treatment grievant tested positive on two occasions and the Company terminated his employment prior to his return to work.

The Union (IBEW Local No. 53) grieved the termination and submitted the dispute to arbitration. The arbitrator upheld the grievance. He determined that the lca was "unconscionable" since the initial negative drug test established grievant had not broken any work rule, and that the continuation of the suspension after learning of the negative results was "indefensible."  He ordered the Company to reinstate grievant with back pay.

The Company sought to set side the award, and, in a decision discussed here, the district court determined that the arbitrator had exceeded his authority by disregarding the last chance agreement. The Union appealed, and the Eighth Circuit has reversed.

The Circuit court described the issue before it as:

 When an employer and employee enter into a last chance agreement ("LCA") enforcing the employer's drug policy without the union's participation, the employer subsequently invokes the LCA provision mandating discharge in the event of a violation, and the union claims this discipline was contrary to the "just cause" limitation in the grievance and arbitration provisions of the collective bargaining agreement ("CBA"), what is the appropriate standard of review (i) for the arbitrator, and (ii) for this court in reviewing the arbitrator's award?

While observing that it agreed with the district court's determination that the last chance agreement was not unconscionable when initially entered into, the Court concluded that the district court erred by reading the Court's previous decision in Coca-Cola Bottling Co. v. Teamsters Local No. 688 too broadly. In the Coca-Cola case, the court overturned an arbitrator who had disregarded a last chance agreement entered into between the company and union in resolution of a grievance. Here, however, the Union was not a party to the agreement and the lca itself was premised on the "mutual mistake" that grievant had violated the drug policy. In reviewing the instant grievance, the arbitrator "correctly focused" his decision on the just cause issue. According to the Court:

This focus did not permit the arbitrator to ignore the LCA, but it did mean he was not contractually bound to apply the LCA's mandatory termination clause if the evidence persuaded him there was not just cause to do so.

Noting the narrow scope of review, the Court concluded that the arbitrator decision on the termination was within his authority and his award should be confirmed.

The concurring opinion agreed that the award should be confirmed, but would not reach as far as it believed the majority had in determining that the absence of the union's participation in the lca rendered it unenforceable. 

The Court's opinion in Associated Electric Cooperative, Inc. v. International Brotherhood of Electrical Workers, Local No. 53, can be found here.

Does public policy require termination of a state trooper who had a sexual encounter with a domestic violence victim?

The Supreme Court of Alaska has rejected a public policy challenge to the decision of an arbitrator upholding a grievance filed on behalf of a State Trooper dismissed for engaging in consensual sex with a domestic violence victim.

Grievant entered the academy in February of 2008. Following field training and the expiration of his probationary period he was promoted to the position of State Trooper in March of 2009. The incident in issue took place in April 2009. Grievant was called to assist another Trooper in the investigation of a claim of domestic violence. While the first Trooper interviewed the husband, Grievant spoke with the victim. According to Grievant, the victim began to flirt with him and asked for his personal cell phone number, but he refused to provide it. The husband was arrested and charged with assault. Early the next morning, while off duty, grievant texted his cell phone number to the complainant. The complainant called grievant, who then went to her home where they had consensual sex.

Subsequently complainant told her husband of her actions. He in turn told his defense attorney who told the district attorney. The state conducted an investigation of grievant's actions. Grievant's supervisor recommended that he be suspended, but the Director of State Troopers decided instead to terminate his employment.

The dismissal was grieved and submitted to arbitration. The Arbitrator concluded that that the State had not engaged in progressive discipline, that previous instances of sexual misconduct had not resulted in termination, and that if the State intended to apply a zero tolerance policy it needed to inform the troopers. While finding the grievant had engaged in unprofessional conduct and had shown poor judgment she reduced the dismissal to a suspension and ordered the grievant's reinstatement.

While the arbitration was pending, the State also sought, through the State's Police Standards Council, revocation of grievant's basic police certificate. Possession of a certificate is a requirement for every state trooper. An administrative law judge found revocation warranted, and the Police Standards Council voted to revoke grievant's certificate.

The State filed a complaint, seeking to set aside the arbitrator's award as being the result of gross error, and because, the State claimed, it was contrary to public policy. The Superior Court upheld the arbitrator's award in part. It rejected the State's public policy argument, but concluded that the revocation of grievant's certificate precluded his reinstatement. Accordingly, it upheld the award of back pay from the time of termination to the date of the revocation of the certificate. It declined to uphold the ordered reinstatement.

The State appealed, and the Alaska Supreme Court has affirmed the decision of the superior court. In rejecting the State's arguments, the Court observed:

the correct question is not whether the Trooper-Grievant's conduct violated public policy; rather, it is whether the arbitration award of reinstatement with back pay itself violates an "explicit, well-defined, and dominant public policy." Although we cannot disagree with the State that the Trooper-Grievant's conduct was censurable, we also cannot overturn an arbitrator's decision if that decision does not violate an explicit, well-defined, and dominant public policy. We therefore must affirm the superior court's decision to uphold the arbitrator's award in part.

In reaching its decision the Court noted several cases from other jurisdictions rejecting efforts to set aside arbitrators' awards reinstating law enforcement officers who had consensual sex with a witness or informant. (Monroe County Sheriff v. Fraternal Order of Police;  Bureau of Maine State Police v. Pratt;  City of Lincoln Park v. Lincoln Park Police Officers Ass'n)

Because it agreed with the lower court that grievant could not be reinstated without a police certificate, however, it also affirmed the lower court's refusal to enforce that portion of the award ordering grievant's reinstatement.

The Court's decision, State v. Public Safety Employees Association, can be found here.