Two officers of the DeFuniak Springs Police department, Officer Richard Boblitt and Sergeant Anthony Kaiser, claimed they were dismissed in retaliation for having supported the Department Chief's opponent in a municipal election.
The two had been employed by the Department for 17 and 4 years respectively. Both were instrumental in bringing the PBA into the Department in 2010.
The Chief was up for reelection in April 2015. On March 25, 2015 the PBA endorsed the Chief's opponent. On April 2, 2015 several Department employees published a letter in a local newspaper questioning the PBA's endorsement of the Chief's opponent. Also on that date one of the officers who signed the letter filed a complaint against Boblitt and Kaiser alleging racial harassment. An Internal Affairs investigation was initiated on April 8, and the two were notified of the investigation on April 13. The election was held on April 14, and the incumbent Chief prevailed.
On June 2, 2015 the Department notified Boblitt and Kaiser that their employment was being terminated, Boblitt for allegedly having racially harassed the complaining officer and Kaiser for failing to take corrective action. Both grieved their termination and the dispute was submitted to arbitrator Jeanne Charles Wood for resolution.
Largely based on her credibility resolutions and her evaluation of the evidence against the grievants, Arbitrator Wood found the termination of the two not supported by just cause. Regarding the Union's claim that that the terminations were part of a "conspiracy" relating to the reelection of the Chief, and the City's claim that the terminations were compelled by its obligations under Title VII, the Arbitrator noted:
So, the question remains: Why would [the complaining officer] file the complaint when he did? The Union contends that it was part of a conspiracy relating to the election of Chief Weeks whose opponent was supported by the Union. I make no findings regarding this theory. It is, however, concluded that based on the totality of the circumstances present here, Boblitt's comments were not so severe or pervasive too alter the terms and conditions of [the complaining officer's] employment. That being the case, the City has failed to prove that Boblitt engaged in unlawful racial harassment in violation of Title VII. It follows then that Kaiser, was not negligent in failing to report or take corrective action in connection with racially discriminatory harassment in violation of Title VII.
Arbitrator Woods did find, however, that certain conduct of the grievants was contrary to Department policy, even if not severe enough to constitute unlawful harassment. Observing that police officers are held to a higher standard than other employees, and that "use of potentially racially offensive language and clearly inappropriate name calling in reference to a co-worker's national origin is serious enough to warrant a suspension." Reducing the terminations to five day suspensions, Arbitrator Wood noted:
Progressive discipline is an element of the just cause doctrine. The rationale for using a progressive discipline system is that both the employer and the employee "benefit when an employee can be rehabilitated and retained as a productive member of the work force. ..." [footnote omitted]
Finding no evidence that grievants' conduct could not be corrected by discipline less than termination, and also finding some evidence of disparate treatment, Arbitrator Wood ordered that grievants be reinstated subject to the five day suspensions.
Arbitrator Wood's award can be found here.
Monday, June 26, 2017
Sunday, June 18, 2017
Letter of Reprimand and recording of classes didn't violate university professor's academic freedom
Arbitrator Thomas W. Young issued an award in a dispute between the University of Central Florida and one of its professors. The grievant had been employed by the University for 15 years without discipline in his record. At some point, the University conducted an investigation of a series of incidents involving grievant and his students. The investigation was conducted by a team including the University's Assistant Director EOAA, Title IX Coordinator, The Director of Compliance and Ethics, and a Senior Compliance Analyst. That investigation culminated in a report, finding that while grievant's conduct did not constitute sexual harassment under applicable law and policies, grievant "has a long standing pattern of hostility towards women and ... he lacks the ability to conduct himself with civility and professionalism in the classroom and the office."
In response to the report, the Chair of grievant's Department issued a Letter of Reprimand. The letter incorporated ten incidents expressed in the report and admonished grievant to avoid certain behaviors in the future. These behaviors included ceasing any stories or anecdotes which suggested to students that they cannot report complaints about him to the University, a prohibition on profanity directed at students, sexist language in the classroom and discriminatory behavior in the classroom or office. The Letter also advised grievant that his classes would be recorded and reviewed for the Summer and Fall terms.
A grievance was filed over the Letter and related restrictions. Among the professor's claims in the grievance process was an assertion that the University's action restricted "the spirit of intellectual exchange in the classroom" and violated his academic freedom as guaranteed by the cba. That agreement provided:
Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research, and to publish the results of that research. Consistent with the exercise of academic responsibility, employees shall have freedom to present and discuss their own academic subjects, frankly and forthrightly, without fear of censorship, and to select instructional materials and determine grades in accordance with the University policies. Objective and skillful exposition of such subject matter, including the acknowledgment of a variety of scholarly opinions, is the duty of every such employee. Faculty are also free to address any matter of institutional policy or action. As individuals, employees are free to express their opinions to the larger community on any matter of social, political economic, or other public interest, without institutional discipline or restraint due to the content of those messages. Unless specifically authorized by the administration, employees’ opinions do not reflect the policies or official positions of the University of Central Florida.
In response to the report, the Chair of grievant's Department issued a Letter of Reprimand. The letter incorporated ten incidents expressed in the report and admonished grievant to avoid certain behaviors in the future. These behaviors included ceasing any stories or anecdotes which suggested to students that they cannot report complaints about him to the University, a prohibition on profanity directed at students, sexist language in the classroom and discriminatory behavior in the classroom or office. The Letter also advised grievant that his classes would be recorded and reviewed for the Summer and Fall terms.
A grievance was filed over the Letter and related restrictions. Among the professor's claims in the grievance process was an assertion that the University's action restricted "the spirit of intellectual exchange in the classroom" and violated his academic freedom as guaranteed by the cba. That agreement provided:
Academic freedom is the freedom to teach, both in and outside the classroom, to conduct research, and to publish the results of that research. Consistent with the exercise of academic responsibility, employees shall have freedom to present and discuss their own academic subjects, frankly and forthrightly, without fear of censorship, and to select instructional materials and determine grades in accordance with the University policies. Objective and skillful exposition of such subject matter, including the acknowledgment of a variety of scholarly opinions, is the duty of every such employee. Faculty are also free to address any matter of institutional policy or action. As individuals, employees are free to express their opinions to the larger community on any matter of social, political economic, or other public interest, without institutional discipline or restraint due to the content of those messages. Unless specifically authorized by the administration, employees’ opinions do not reflect the policies or official positions of the University of Central Florida.
Grievant maintained that the conditions set forth in the Letter of Reprimand and the decision to record his lectures limited his ability to freely debate and discuss since he did not know how the video of his teaching would be used or who would be viewing it.
Arbitrator Young rejected these claims. Concerning the restrictions contained in the Letter he concluded:
There is nothing in the 6 admonitions, or anywhere else in the Letter of Reprimand, that would require Grievant to alter course content or restrict "the spirit of intellectual exchange in the classroom." Specifically, there is no record evidence that the Letter of Reprimand required or even suggested that Grievant stop teaching his classes using the George Carlin Pacifica monologue. To the contrary, testimony from Beckman at hearing is instructive on this point. Beckman was asked, "[A]t any time, through this document [Letter of Reprimand] do you direct any faculty member to actually alter course content in terms of the delivery of their academic instruction?" Beckman responded:
In my five years as chair I have never once requested a faculty member change course content, change course delivery, change what chapters they’re assigning in a book, what they’re not assigning in a book; . . .
Rather than alter course content, the record instead establishes that the admonitions address Grievant's use of profanity and vulgarity and discriminatory treatment directed at students in his classroom. The Investigative Report establishes that the referenced profanity, vulgarity and discriminatory treatment were not germane to his course material therefore not protected pursuant to section 5.2 of the CBA.
Arbitrator Young rejected these claims. Concerning the restrictions contained in the Letter he concluded:
There is nothing in the 6 admonitions, or anywhere else in the Letter of Reprimand, that would require Grievant to alter course content or restrict "the spirit of intellectual exchange in the classroom." Specifically, there is no record evidence that the Letter of Reprimand required or even suggested that Grievant stop teaching his classes using the George Carlin Pacifica monologue. To the contrary, testimony from Beckman at hearing is instructive on this point. Beckman was asked, "[A]t any time, through this document [Letter of Reprimand] do you direct any faculty member to actually alter course content in terms of the delivery of their academic instruction?" Beckman responded:
In my five years as chair I have never once requested a faculty member change course content, change course delivery, change what chapters they’re assigning in a book, what they’re not assigning in a book; . . .
Rather than alter course content, the record instead establishes that the admonitions address Grievant's use of profanity and vulgarity and discriminatory treatment directed at students in his classroom. The Investigative Report establishes that the referenced profanity, vulgarity and discriminatory treatment were not germane to his course material therefore not protected pursuant to section 5.2 of the CBA.
Concerning the requirement that his classes be recorded, Arbitrator Young noted that Grievant did not object to random observation of his classroom and concluded that failed to explain why monitoring by video would chill "the opportunity for open discourse, whereas monitoring by a human being would not."
The Arbitrator found the restrictions contained in the Reprimand were narrowly tailored to prevent a breach of grievant's academic freedom rights and determined that the recording of classes was not imposed to alter course content but simply to ensure compliance with the restrictions contained in the Letter of Reprimand.
Arbitrator Young's award can be found here.
Arbitrator Young's award can be found here.
Sunday, June 11, 2017
Arbitrator overturns termination of Miami police officer for invocation of Fifth Amendment rights
Arbitrator Donald Spero has issued an award in a dispute between The city of Miami and the Miami Fraternal Order of Police Lodge #20.
Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.
In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.
On April 27, 2016 the City terminated grievant's employment. The City articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.
Arbitrator Spero described the first issue as :
whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.
Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:
[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.
Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.
On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.
According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.
Grievant was employed as a police officer for approximately nine years at the time of his termination. Prior to his employment with the police department, grievant had been employed at a PCS Metro store. In October of 2007 Grievant was working at the PCS store when it was robbed and a manager of the store was shot and killed during the course of the robbery.
In December of 2012 the Miami police received a tip implicating grievant in the robbery. In February 2013 Grievant was called in for an interview with a homicide detective concerning the robbery. While the issue was contested, Arbitrator Spero found that grievant invoked his Fifth Amendment rights and left the interview. Grievant was assigned to Relieved of Duty (ROD) status and was required to remain at home, while continuing to be paid, from 8 to 4 every workday.
On April 27, 2016 the City terminated grievant's employment. The City articulated two reasons for the termination. The first was grievant's refusal to answer questions in the February 2013 interview. The second alleged several failures of grievant to comply with the ROD status. The matter was grieved and submitted to Arbitrator Spero for resolution.
Arbitrator Spero described the first issue as :
whether the grievant was protected by the Fifth Amendment and by "Garrity" rights from answering questions propounded to him during a police department inquiry on February 11, 2013.
Answering the question in the affirmative, Arbitrator Spero noted that grievant's lawyer in the criminal case advised the City that grievant would not give a statement unless he was given Garrity rights. The Arbitrator concluded:
[Grievant] was entitled to decline to answer the City's inquiries without being afforded Garrity rights. Through his attorney he offered to do so. If he declined to respond after being afforded Garrity rights he would have been subject to discipline. The City in its judgment determined that it wanted to preserve the rights to prosecute [Grievant] Thus by preserving its opportunity to prosecute based on his statement it abandoned its right to inquire.
Arbitrator Spero rejected the City's argument that grievant had waived his Fifth Amendment rights when he initially took his oath as a new police officer essentially swearing to uphold and defend the law and to faithful perform all of his duties as a place officer. That oath did not expressly waive any rights, and adopting the city's position would mean that no officer had any Fifth Amendment rights.
On the issue of of grievant's failure to adhere to the ROD restrictions, however, the arbitrator found that the City had established one of its claims, justifying "severe" discipline. Accordingly Arbitrator Spero ordered grievant's reinstatement but denied him back pay for his time off.
According to news reports, When Miami fires cops, they usually get their jobs back — even if they’re murder suspects, the City will seek to overturn the award.
Sunday, June 4, 2017
Law Enforcement: Untruthfulness, reinstatement and Brady issues
Post reinstatement Brady issues for law enforcement officers terminated for claimed dishonesty
Several recent cases involve this issue. A news report describes a lawsuit filed by Clay County MN Deputy Ryan Carey seeking to have his name removed from the County's Brady list. Deputy who Clay County once tried to fire sues in hopes of returning to patrol. Deputy Carey had been dismissed by the Clay County Sheriffs Department in July 2012. The notice of termination listed a number of alleged offenses, including one of "Lying while under Garrity/Tennessen Warning."
Arbitrator James A. Lundberg issued an award rejecting most of the claimed violations. Concerning the charge that grievant had lied, the arbitrator concluded:
The statements made ... about text messages were inaccurate but there is no reason to believe that [the] Deputy ... was lying to the investigators. ... The evidence of dishonesty regarding the text message is insufficient. The evidence supporting the claim that grievant lied about whether he apologized to Lt. Morrow for himself or the group and whether he mentioned alcohol as a factoring the conduct on June 10, 2012 is also insufficient. ... The employer did not have just cause to discipline the grievant for dishonesty.
Deputy Carey was reinstated but, according to the news report, he has been removed from patrol duty because his name remains on a Brady list, restricting his ability to testify in court. He has been assigned instead to a courthouse security position. Deputy Carey's suit seeks to have the Brady designation dropped and to have the county barred from refusing to consider him for other positions.
A similar restriction has been imposed by the San Antonio police department on an officer reinstated following a grievance. The officer was placed on "indefinite suspension" (i.e. dismissed) after it was discovered that his report of a drug stop was not entirely accurate. The officer's actions at the scene were captured on the Department's COBAN system. While conducting drug interdiction, the officer stopped a vehicle. He had previously observed several suspicious packages being received by the driver. The officer observed two bags of marijuana between the driver seat and the door. During a conversation with the passenger of the vehicle, the passenger admitted that she also had a bag of marijuana, and removed it from her bra. The officer elected to not arrest the passenger, and his report of the incident claimed that he saw three bags between the driver seat and the door. The driver was arrested. Subsequent review of the COBAN video by the prosecutor's office raised a question about the accuracy of the report and the Department conducted an investigation. As a result of that investigation the officer was placed on indefinite suspension for being "untruthful in his written report concerning where the narcotics were discovered and who had possession of the narcotics."
The case was presented to Arbitrator Don B. Hays who concluded that:
Although obligated by oath and professional position to tell the truth, on this occasion appellant acted and/or spoke untruthfully on many of the subjects that he knew, or reasonably should have known were of material interest to both the district attorney, the city's investigators and to us.
Nevertheless, Arbitrator Hays found sufficient mitigating factors, including an absence of any improper motive for grievant's actions, to warrant reinstatement. Arbitrator Hays' award can be found here.
According to news reports (SAPD officer accused of looking the other way on narcotics arrest gets termination overturned) the officer has been returned to the force but the District Attorney has placed the officer on a Brady disclosure list and the Department has indicated that his assignments going forward will be limited "to an administrative position that will not be affected by his past disciplinary record."
A third situation also involves a Brady designation and a post reinstatement law suit but it is unclear how much the Brady issues relates to the lawsuit. A King County, WA Deputy was dismissed for alleged dishonesty in continuing to receive supplemental pay for a position she no longer held. The County maintained that the Deputy knew or should have known that receipt of the supplemental pay was improper and failed to take steps have it stopped. Because the Sheriff viewed this as a matter of honesty the office notified the prosecutors office that the Deputy was subject to Brady list disclosure.
Arbitrator David Stiteler sustained the grievance in part. His findings on the dishonesty issue are somewhat ambiguous but he did find that in light of evidence of disparity treatment and management failures in connection with its own handling if the overpayment issue, discharge was too severe a penalty. He found just cause for discipline but not for discharge and ordered the grievant's reinstatement. His award can be found here. Subsequent to the award, grievant claimed that she was "shuffled" into several undesirable jobs before she retired prematurely. Ex-deputy sues, accuses King County sheriff of discriminating against female officers. She has sued the County alleging discrimination and retaliation.
Not waiting for reinstatement, the City of Pittsfield, MA has filed suit contesting the arbitrator ordered reinstatement of a police officer dismissed for, inter alia, untruthfulness and falsifying records in connection with a shoplifting arrest. Pittsfield fights arbiter's decision to reinstate fired police officer. Arbitrator Michael Stutz concluded (here) that the officer's "intentional inaccuracy violated [his] obligation to be absolutely truthful." Finding that three words in the officer's report were "untrue, intentionally misleading, and cause for discipline, but less than intentionally false" he concluded that there was just cause for discipline, but not for dismissal. Arbitrator Stutz converted the termination to a three day suspension. The City's suit contends that the reinstatement is contrary to public policy by allowing an untruthful officer to remain employed with the department.
Similar issues are discussed in earlier posts:
Sunday, May 21, 2017
Quick Hits- Police Officers' Bill of Rights, respirator fit tests, and an arbitrator's authority to modify discipline
City's untimely discipline violates Police Officers' Bill of Rights - Reinstatement ordered
Arbitrator Kenneth Starr granted in part a grievance filed by a Naples, FL police officer who had been dismissed for his alleged involvement in the disappearance of another officer's service weapon, and for allegedly telling a security guard that another police officer had been involved in the shooting of that officer's wife (also an officer of the Naples PD) and the shooting death of a third Naples officer. Arbitrator Starr found the first allegation unsupported by the evidence. Concerning the second allegation, the arbitrator concluded that "Taking into account all of the facts and implications contained hereinabove, the arbitrator finds the City was justified in imposing discipline upon Grievant, up to and including, termination."
Nevertheless, Arbitrator Starr found that the City had violated Florida's Police Officers Bill of Rights, which was incorporated into the cba, by failing to take disciplinary action within 180 days of receiving the allegation underlying the purported grounds for the discipline. He therefore ordered the grievant's reinstatement, but concluded:
However, the arbitrator finds that an award of back pay in this case is inappropriate for several reasons. 20 Grievant in this case bore most, if not all, of the responsibility [for] the problem that resulted in his termination. Additionally, Grievant failed to mitigate his (back pay) damages and, in fact, provided no evidence that he even attempted to find work elsewhere. Accordingly, that portion of the grievance requesting back pay is DENIED in its entirety.
However, the arbitrator finds that an award of back pay in this case is inappropriate for several reasons. 20 Grievant in this case bore most, if not all, of the responsibility [for] the problem that resulted in his termination. Additionally, Grievant failed to mitigate his (back pay) damages and, in fact, provided no evidence that he even attempted to find work elsewhere. Accordingly, that portion of the grievance requesting back pay is DENIED in its entirety.
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20 See: Elkouri & Elkouri, How Arbitration Works, 7th Ed., at CH.18.3A. iii and Ch 18.3.I. (2012)
Arbitrator Starr's award can be found here.
Eighth Circuit: Arbitrator's award reinstating bearded nuclear security officer not barred by public policy
The Eight Circuit has refused to set aside the dismissal of a Nuclear Security Officer who the employer concluded could not pass a required respirator fit test because of facial hair. Entergy Operations, Inc. v. United Government Security Officers of America The employee was called in for an unannounced fit test, but, because he had what was described as a full goatee, the facility concluded that he would be unable to pass the test. It relied on NRC regulations which it asserted required employees to be clean shaven. Arbitrator Robert Curtis sustained the employee's grievance over his dismissal. Arbitrator Curtis' award can be found here. The arbitrator found that by not at least attempting the fit test the facility could not be sure the employee could not successfully pass the test. He also concluded that Entergy failed to reasonably accommodate the grievant, who was suffering from folliculitis, by not assigning him to a post that did not require the use of a respirator/mask. Entergy sought to set aside the award as contrary to public policy (i.e the NRC regulations). The District Court (here) concluded on the record made at the arbitration hearing that the arbitrator nether exceeded his authority nor acted contrary to public policy. The Court noted the arbitrator's conclusion that by refusing to conduct the fit test unless grievant shaved Entergy failed to establish that grievant's facial hair would improperly interfere with a proper seal. It also agreed with the arbitrator's reasonable accommodation analysis. On the Company's appeal, the Eight Circuit found it unnecessary to decide whether fit testing an individual with facial hair would violate federal regulations in light of the arbitrator's accommodation analysis. The arbitrator's factual findings on the availability of posts not requiring a fit test was supported by the testimony and Entergy's challenge on this point was based on neither the cba nor federal regulations, but rather on Entergy's practice and preference.
Ohio Supreme Court concludes that limitations on an arbitrator's remedial authority must be set forth in the cba
In its recent decision in Ohio Patrolmen's Benevolent Association v. City of Findlay the Ohio Supreme Court addressed the question of whether a police department's disciplinary matrix, not contained in a cba, could restrict an arbitrator's ability to modify discipline as part of a just cause analysis. The matrix provided that if more than one discipline level was indicated, the Chef had sole discretion in determining which of the levels was appropriate in a particular case. The case arose when Arbitrator James Mancini issued an award finding "just cause for severe discipline" but overturning the Chief's termination decision. The City refused to reinstate the grievant, arguing that since the matrix provided for discipline ranging from a 3-10 day suspension up to termination, the decision of the Chief should prevail. The Trial court and the appellate court agreed with the City's position. The Supreme Court, however, concluded:
Although nothing in the CBA precludes the city from using the matrix as a guide in imposing discipline, treating the matrix as binding on the arbitrator would conflict with the just cause requirement for discipline that the city and the OPBA negotiated into the CBA and as in SORTA, would undermine the integrity of the entire collective bargaining process.
Because the parties did not specifically bargain for the matrix and incorporate it into the CBA, Mancini had authority to review the appropriateness of the disciplinary action imposed in this matter and broad authority to fashion a remedy.
Reversing the decision of the lower Court, the Supreme Court held that:
Any limitation on an arbitrator's authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.
20 See: Elkouri & Elkouri, How Arbitration Works, 7th Ed., at CH.18.3A. iii and Ch 18.3.I. (2012)
Arbitrator Starr's award can be found here.
Eighth Circuit: Arbitrator's award reinstating bearded nuclear security officer not barred by public policy
The Eight Circuit has refused to set aside the dismissal of a Nuclear Security Officer who the employer concluded could not pass a required respirator fit test because of facial hair. Entergy Operations, Inc. v. United Government Security Officers of America The employee was called in for an unannounced fit test, but, because he had what was described as a full goatee, the facility concluded that he would be unable to pass the test. It relied on NRC regulations which it asserted required employees to be clean shaven. Arbitrator Robert Curtis sustained the employee's grievance over his dismissal. Arbitrator Curtis' award can be found here. The arbitrator found that by not at least attempting the fit test the facility could not be sure the employee could not successfully pass the test. He also concluded that Entergy failed to reasonably accommodate the grievant, who was suffering from folliculitis, by not assigning him to a post that did not require the use of a respirator/mask. Entergy sought to set aside the award as contrary to public policy (i.e the NRC regulations). The District Court (here) concluded on the record made at the arbitration hearing that the arbitrator nether exceeded his authority nor acted contrary to public policy. The Court noted the arbitrator's conclusion that by refusing to conduct the fit test unless grievant shaved Entergy failed to establish that grievant's facial hair would improperly interfere with a proper seal. It also agreed with the arbitrator's reasonable accommodation analysis. On the Company's appeal, the Eight Circuit found it unnecessary to decide whether fit testing an individual with facial hair would violate federal regulations in light of the arbitrator's accommodation analysis. The arbitrator's factual findings on the availability of posts not requiring a fit test was supported by the testimony and Entergy's challenge on this point was based on neither the cba nor federal regulations, but rather on Entergy's practice and preference.
Ohio Supreme Court concludes that limitations on an arbitrator's remedial authority must be set forth in the cba
In its recent decision in Ohio Patrolmen's Benevolent Association v. City of Findlay the Ohio Supreme Court addressed the question of whether a police department's disciplinary matrix, not contained in a cba, could restrict an arbitrator's ability to modify discipline as part of a just cause analysis. The matrix provided that if more than one discipline level was indicated, the Chef had sole discretion in determining which of the levels was appropriate in a particular case. The case arose when Arbitrator James Mancini issued an award finding "just cause for severe discipline" but overturning the Chief's termination decision. The City refused to reinstate the grievant, arguing that since the matrix provided for discipline ranging from a 3-10 day suspension up to termination, the decision of the Chief should prevail. The Trial court and the appellate court agreed with the City's position. The Supreme Court, however, concluded:
Although nothing in the CBA precludes the city from using the matrix as a guide in imposing discipline, treating the matrix as binding on the arbitrator would conflict with the just cause requirement for discipline that the city and the OPBA negotiated into the CBA and as in SORTA, would undermine the integrity of the entire collective bargaining process.
Because the parties did not specifically bargain for the matrix and incorporate it into the CBA, Mancini had authority to review the appropriateness of the disciplinary action imposed in this matter and broad authority to fashion a remedy.
Reversing the decision of the lower Court, the Supreme Court held that:
Any limitation on an arbitrator's authority to modify a disciplinary action pursuant to a CBA provision requiring that discipline be imposed only for just cause must be specifically bargained for by the parties and incorporated into the CBA.
Legally Speaking Ohio's preview of the oral argument here contains an analysis of the case and links to the arbitrator's award and the lower courts' opinions.
Sunday, May 14, 2017
Public policy, police use of force, condonation and the likelihood of recidivism
It took an arbitration, two court decisions and a second arbitration, discussing issues of police use of force, condonation of misconduct, due process, public policy and potential recidivism, but former Des Plaines, IL police officer John Bueno may once again be returning to the force.
Officer Bueno began his employment with the Des Plaines PD in April, 2002. He was considered a hard working officer who received repeated commendations for his performance. He generally received good performance reviews, both before and after the incidents in issue.
In June 2009, he pushed an arrestee who was confined in the station holding cell after hearing the individual make vulgar comments about his daughter. In January 2010 he punched an arrestee in the nose while inside the police station, and in August 2010 he punched a handcuffed prisoner who was seated in the back of his parol car. Grievant did not report the use of force in any of these incidents, as he was required to do by Department policy. Superiors in the Department were aware at least of the later two incidents but took no action.
Almost a year later, in August 2011, the Acting City Manager received letter from an attorney alleging that Bueno had "brutally beaten" prisoners. The Acting Manager subsequently testified that this was the first he became aware of these allegations. He asked the Deputy Chief to conduct an investigation and, following that investigation, the City terminated Bueno's employment in March of 2012. The allegations against Bueno included both the improper use of force and dishonesty during the investigation. The parties agreed to submit the propriety of that termination directly to arbitration, and on May 3, 2013 Arbitrator Peter Feuille issued an award (here) upholding, in part, the grievance. Arbitrator Feuille concluded that the City had established the improper use of force and that Bueno had not been truthful during the investigation. Nevertheless he found that the City had deprived him of due process by delaying the investigation for so long, and that the Department had condoned the use of force by failing to take any action against Bueno despite knowledge of the incidents. He ordered Bueno's reinstatement without back pay and imposed a three year last chance provision for any future violation of the use of force policy or the Department's truthfulness policy. The award is discussed at Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations
The City sought to vacate the award, claiming that reinstating Bueno despite the findings of improper use force and dishonesty was contrary to public policy. The circuit court agreed and vacated the award. It also denied the Union's request to remand the dispute back to the arbitrator for a factual finding concerning the likelihood that Bueno would reoffend.
The Union appealed, and the Appellate Court concluded that it could not decide the appeal without evidence of "whether Bueno is likely to engage in similar misconduct upon reinstatement." City of Des Plaines v. Metropolitan Alliance of Police, Chapter No. 240. In reaching this conclusion, the Court first addressed the public policy issue raised by the City. It noted that the Illinois Supreme Court (in AFSCME v. Department of Central Management Services) held that the public policy analysis on a challenge to an arbitration award required a two step process. First, the Court must determine if there is a "well-established and dominant policy implicated by the arbitrator's award."
In this case, the court found that there was:
we find that the arbitration award here implicates a well-defined and dominant public policy, namely, the public policy against police officers unnecessarily using force against prisoners and being dishonest about that use of force during a subsequent investigation.
The second prong then an analysis of "whether the arbitrator's award, as reflected in his interpretation of the agreement, violated the public policy."
Applying that second prong to the case before it, the Appellate Court described the issue as :
whether the arbitrator's award, i.e., reinstatement of Bueno as a police officer under the terms and conditions attached to his reinstatement, resulted in a violation of the established public policy of ensuring that law enforcement officers refrain from using unnecessary or unreasonable force, failing to report such incidents if they occur, and being untruthful during investigations of the incidents.
The court determined that the record, including the arbitrator's award, was devoid of any finding on the "likelihood of recidivism" and that without such a finding it couldn't determine whether reinstatement was contrary to public policy. Accordingly it ordered the remand of the case to the arbitrator an express finding on this question.
Arbitrator James R. Cox (appointed after the death of Arbitrator Fuille) has now concluded that Bueno is unlikely to engage in similar conduct in the future. Arbitrator Cox's award can be found here.
Arbitrator Cox noted that since the incidents in question the apartment has a new Chief. He noted changes in both the environment of the police department and the unlikelihood of future offenses by the grievant:
That conclusion is based not only on the positive recognition of his performance as a Des Plaines Police Officer, but upon Steps the City has taken after the 2011 disclosures of Bueno's misconduct in the [redacted] cases. Those Steps changed his working environment by eliminating the previous climate of condonation within the City of Des Plaines Police Department.
***
John Bueno now knows without question, that the City of Des Plaines and their Police Department do not approve of use of excessive force towards prisoners.
Arbitrator Cox also noted that the last chance provision that was part of Arbitrator Feuille's reinstatement order makes it unlikely that Bueno would engage in similar acts in the future.
According to news reports, while the City has not made a final decision on whether it will appeal the case once again, grievant will likely be returning to the department. Bueno Might Be Back By August.
Sunday, May 7, 2017
DC Circuit panel split on impact of public policy on OIG investigation arbitration award
In National Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Committee, the DC Circuit, over a strong dissent by Judge Pillard, has affirmed the District Court's decision vacating an arbitrator's award that reinstated a member of the Amtrak police department.
The cba between Amtrak and the Union contained a "Police Officer's Bill of Rights" provision. That provision ("Rule 50") required that any officer subject to an investigation be informed of their right to remain silent, the right to delay questioning to have a union representative present, and the recording of the interview with the officer by either mechanical or stenographic means.
After allegations arose that an officer jointly owned a home with her supervisor and received a disproportionate share of premium assignments, Amtrak's Internal Affairs Unit conducted an investigation. The officer was interviewed in compliance with Rule 50. That investigation was closed without discipline (other than a letter of counseling for creating the appearance of impropriety and potential conflict of interest). The Office of Inspector General subsequently conducted its own investigation. The officer was again interviewed, but was not advised of her right to have a union representative present and the interview was not recorded. After receiving the Inspector General's report, which concluded that the officer had made false statements and omissions during the internal affairs investigation and that some of her conduct was potentially criminal, Amtrak terminated the employment of the officer.
The termination was pursued to arbitration, and Arbitrator Joan Parker ordered the officer's reinstatement, concluding that "because the procedural safeguards guaranteed to employees by Rule 50 were not afforded her during the ...Amtrak OIG interrogation" there was not just cause for her discharge. Arbitrator Parker's award can be found here.
Shortly after the arbitrator's award was issued, the DC Circuit issued its decision in U.S. Department of Homeland Security v. Federal Labor Relations Authority holding that "public sector unions and agencies can neither add to nor subtract from the OIG's investigators authority through collective bargaining."
Amtrak sought to vacate the arbitrator's award. The District Court granted that request (here), concluding that the award was contrary to public policy. The Court held that the Circuit court's decision in the Department of Homeland Security case:
... makes clear that the IG Act's public policy of Inspector General independence would be violated if CBAs could restrict an Inspector General's investigative authority. Because the Arbitrator's Decision would subject the Amtrak OIG's investigative powers to limitations contained in a CBA — not a statute — there is no question that the Decision is contrary to the public policy underlying the IG Act. Thus, the Arbitrator's Decision cannot stand.
The Court denied the Union's Motion for For Reconsideration (here), and the Union appealed.
The Circuit court, in a 2-1 decision, has affirmed. The majority determined that the Court's previous decision in Department of Homeland Security "is directly on point." The Court noted that the Arbitrator explicitly based her decision on the OIG's failure to observe the provisions of Rule 50 and held:
It makes no difference that DHS was decided after the arbitration award. ... That collective bargaining agreements may not regulate an Inspector General's investigatory authority has been the law for decades, as the Fourth Circuit's 1994 decision in Nuclear Regulatory Commission v. FLRA shows. ... A federal court, reviewing an arbitration award, "may refuse to enforce contracts that violate law or public policy." United Paperworkers, 484 U.S. at 42 (citing Hurd, 334 U.S. at 35). Rule 50, as applied to the Amtrak Inspector General, is such a contractual provision and the district court was right in refusing to enforce the arbitrator's award based on that provision.
The dissent, noting the "extremely narrow" scope of review of arbitration awards, would confirm the award. Judge Pillard noted that while the arbitrator did not anticipate the Circuit's subsequent Homeland Security decision, nothing in the arbitrator's reasoning, i.e. that the employee was dismissed without appropriate procedural objections, compeled any violation of public policy. Contrary to the majority's public policy analysis, Judge Pillard concluded:
The court's decision to vacate the arbitral award in this case contradicts decades of precedent delineating a narrow public policy exception and threatens as a practical matter to destabilize many, if not most, arbitral awards. Indeed, its impact may well reach beyond labor arbitration to commercial arbitration under the Federal Arbitration Act, as "[t]here is no doubt that the scope of review of arbitration in cases involving mandatory arbitration of statutory claims is at least as great as the judicial review available in the context of collective bargaining." Cole v. Burns Int'l Sec. Servs., 105 F.3d 1465, 1486 (D.C. Cir. 1997) (emphasis omitted). Today's decision invites litigation in every case in which a disappointed party to an arbitration can base its objection on some claim of error that places the award at odds with "law or public policy." Once arbitration becomes the start rather than the end of the dispute resolution process, it no longer serves the role Congress envisioned. Because I do not see how, consistent with binding precedent, the court can relieve Amtrak of its obligation to comply with its collective bargaining agreement and the arbitral awards rendered thereunder, I respectfully dissent.
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