Arbitrator finds allegations insufficient to support termination even if proven, orders reinstatement before hearing.

The Nassau County (NY) District Attorney's office has challenged a decision of Arbitrator John Sands ordering the reinstatement of  Investigator (and Local Union President) Michael Falzanaro. Nassau DA challenges ruling that her office improperly disclosed wiretap

The DA's office had a wiretap in place in connection with an investigation of municipal corruption. In August 2016, while monitoring certain calls pursuant to an eavesdropping warrant, investigators overhead the subjects of the warrant mention grievant's name. The DA's office applied for and received permission to amend the original warrant to include grievant and others for violating NY Penal Law prohibiting divulging an Eavesdropping Warrant. In June 2017, a grand jury returned sealed indictments against several individuals, not including grievant. On June 29, 2017 the DA's Office terminated grievant's employment.

The termination was based on four specific charges. Those charges read:

1. On or about July 16, 2016 Chief Investigator Daniel Rizzo via a communication email to all Investigators assigned to the Nassau County District Attorney's Office, instructed that only assigned investigators, having received wiretap monitoring instructions relative to Confidential Investigation PC 16-56, were to be permitted in the hallway outside of the monitoring location in the basement of 272 Old Country Rd., Mineola NY On or about August 22, 2016, Michael Falzarano was in violation of that directive. Again, on or about August 29, 2016, Michael Falzarano was observed in the vicinity of the hallway just outside the monitoring location. Both August incidents were in violation of explicit instructions to avoid the location used to intercept and monitor communications authorized by court-ordered wiretaps.

2. On or about August 15, 2016, Michael Falzarano did have a conversation with a target of Confidential Investigation PC 16-56, in which Michael Falzarano did, in sum and substance, advise the target that the Public Corruption Bureau was conducting an investigation utilizing wiretaps. The substance of that conversation was overheard in a court ordered wiretap, on or about August 18, 2016.

3. On or about March 24, 2017, at a meeting of the Nassau County District Attorney's Investigators, at which Michael Falzarano was present, said investigators were instructed to make every effort to avoid any contact with  either witnesses or juror assembled for the Special Grand Jury to hear evidence for case referenced above. On or about April 5, 2017, Investigator Michael Falzarano disobeyed such directives and was in the vicinity of the Special Grand Jury and a witness for that proceeding.

4. On or about and between August 15, 2016 and February 13, 2017, without good cause and contrary to directives, Investigator Falzarano engaged in a course of conduct seeking to continually interact with investigators assigned to the above referenced investigation in an effort to elicit information regarding the details of the investigation and to influence the investigators' conduct by referencing prior favorable labor relations between the NCDA investigators staff and the targets.

Ruling on the Union's Motion to Dismiss, Arbitrator Sands agreed with the Union that the employer violated NY law by divulging the existence and content of the eavesdropping warrant to other than law enforcement officers, including the County's outside labor counsel, the grievant, the Union and Union counsel, and the Arbitrator. He rejected the County's argument that the subsequent approval of the County's ex party request for permission to disclose justified its actions, noting that the request did not cure the earlier violation and allowed the County to "cherry pick" the items it wanted to disclose. He noted further that the legality of the warrant had not yet been resolved in the criminal proceedings that arose out of the indictments, and that Falzanaro had not been indicted in the criminal proceeding, either because "NCDA did in fact seek Falzanaro's indictment but failed to convince the grand jury or (b) that NCDA did not seek his indictment because it did not believe its evidence provided sufficient support for that effort."  Accordingly, and concluding that evidence unrelated to the warrant could have, but did not, form the basis for discipline (whether or not ultimately deemed supported by just cause) at the time it occurred rather than ten months later, he granted the Union's motion to dismiss Charges 1 and 2.

Regarding Charges 3 and 4, Arbitrator Sands observed that they related to matters well after the intercepted communications and "it is not clear in either case that the charge rests on excluded evidence or its fruits." He concluded that "I accordingly cannot dismiss them out of hand without having received evidence to the contrary, which I would expect a hearing to address."

Nevertheless, he found that the allegations did not support grievant's immediate termination. On Charge 3, he noted "Even if NCDA were to prove that grievant's having been 'in the vicinity' violated its instruction, I cannot see how that would support the discharge penalty NCDA imposed."

Similarly, with regard to Charge 4 he found:

Given grievant's role as president and the issue of NCDA's potential discrimination in assignments of IPBA Board members, his interacting with bargaining unit members concerning that subject matter and referring to positive labor relations issues would appear to fall within the ambit of protected union activity. To sustain this charge as an appropriate exercise of managerial authority NCDA would have to adduce affirmative evidence of grievant's improper intent to interfere with the effectiveness of NCDA's investigation or operation or his actions’ having actually done so. Charge 4 does not reflect such an allegation; indeed, the grand jury did in fact issue the indictments NCDA sought notwithstanding anything grievant had done. I accordingly conclude that Charge 4 too does not support the immediate termination of grievant's employment that NCDA imposed. I shall therefore direct NCDA to restore grievant to employment with full back pay and benefits during the pendency of this proceeding. 

The Nassau County DA is quoted in the article linked above as describing the award as ""really unconscionable." Her office has argued to the Court that Falzanaro wasn't fired until after the probe was over, and that the eavesdropping evidence was no longer secret.

Update: A court has vacated the Arbitrator's award , the case will be submitted to a new arbitrator for resolution. Judge rules DA doesn't have to rehire special investigator 

Staffing issues, contracting out bargaining unit work, and a duty to bargain

Each of these topics is the subject of recent  court action.

In MultiCare Health Systems v. Washington State Nurses Association, the Ninth Circuit reversed a District Court order vacating certain remedies ordered in an award of Arbitrator Douglas P. Hammond. The Union's grievance claimed that Multicare violated the terms of a settlement agreement requiring MultiCare to provide employees with  a 15 minute break periods for every four hours worked. Arbitrator Hammond sustained the grievance and ordered MultiCare to cease using a "buddy system" as a means of providing breaks and to "staff, schedule and assign a nurse to serve as a reserve or float nurse with the precise assignment of relieving other scheduled nurses for their authorized breaks."

MultiCare sought to vacate the award, asserting that the arbitrator exceeded his authority and that the issue of increased staffing had been raised by the Union during negotiations leading to the cba and had been rejected. The District Court (here) vacated that portion of the Arbitrator's award precluding the use of the buddy system as inconsistent with the rejection of that proposal during negotiations. On the staffing issue, the Court remanded the matter to the Arbitrator for further consideration, noting:

The Court requested additional briefing on the interpretation of the term "increased staffing" because the record "does not adequately reflect what `increased staffing' entails." Dkt. 33 at 6. Based on the parties' responses, the Court concludes that interpretation of the term is a matter for the Arbitrator. It is unclear whether this issue alone is sufficient to vacate the Award, but, because the Court is vacating the Award on the previous issue, the Court simply points out that additional interpretation would assist a reviewing Court in determining whether the remedy derives its essence from the parties' agreements. In other words, additional consideration and discussion linking the remedy to terms of the contract may be helpful for future review.

 On the Union's appeal, the Ninth Circuit reversed, noting on the "buddy system" issue:

The district court erred in the application of those principles when it determined that the essence of the Agreement did not allow the Arbitrator to exclude use of the buddy system. The Arbitrator did find that MultiCare wanted the Agreement to specifically permit use of the buddy system. However, he also found that WSNA opposed inclusion of that specific provision, and it was left out. By contrast, the Agreement did provide that whatever method was used, nurses were to have their fifteen-minute breaks and that the staffing plan could not be violated. The Arbitrator determined that, as a matter of fact, the buddy system was unable to meet those conditions in practice and was "nonviable." Indeed, the buddy system violated the very purpose (essence) of the Agreement. The district court erred when it overruled the Arbitrator's decision to enjoin the practice that violated the Agreement.

The Court also rejected the District Court's decision on the staffing question, concluding:

The district court opined that "increased staffing" was itself an ambiguous phrase that should have been considered by the Arbitrator. If it is an ambiguous phrase, the Arbitrator implicitly resolved the ambiguity when he made his award. In any event, if the basis of an award is ambiguous, that does not permit a district court to vacate the award itself. ...  Again, we see no basis for overturning the Arbitrator's award.

In PPL Electric Utilities Corporation v. International Brotherhood of Electrical Workers Local 1600 the District Court for the Eastern District of Pennsylvania rejected both the procedural and substantive objections of PPL's complaint seeking to vacate the award of Arbitrator John M. Skonier.

 Arbitrator Skonier upheld a grievance filed by the Union claiming that PPL violated its cba by contracting out bargaining unit work. Arbitrator Skonier found that PPL "failed to live up to the promises it made to the Union" when it negotiated a Letter of Understanding that was made part of its cba. PPL maintained that it had complied with all of the obligations of the LOA and that its actions were consistent with the cba. It also denied making any guarantee of increased union membership or assurance that it would not contract work. Arbitrator Skonier ordered the Company to "cease and desist from violating" the LOA and to provide the Union "with a sum of money equivalent to what the initiation fees and dues would be as though eight employees had been hired."

In its complaint to vacate the award, PPL alleged that the arbitrator "displayed manifest disregard for the parties agreement," relied on erroneous cost projections, and "based the Award on his own moral judgment and notion of fairness."

Rejecting the Company's claim, the District Court concluded that the Arbitrator's reliance on parol evidence was not improper: 

The Arbitrator also relied on PPL's representations in previous negotiation discussions as PPL's "indicia of intent" to conclude PPL violated Exhibit P. Specifically, the Arbitrator found PPL represented to Local 1600 it would increase the number of bargaining unit positions and reduce contractors. ... "PPL's prior representations were offered to Local 1600 to explain PPL's intent when making the proposal [resulting] in the [Letter of Understanding]." (Id.) PPL argues the Arbitrator's use of prior communications not included in the final agreement violates the Parol Evidence Rule and the Arbitrator's use of these communications was unnecessary given the CBA's unambiguity. ... But, our Court of Appeals clearly states it is appropriate to look beyond the face of a CBA given it is not an ordinary contract for the purchase of goods and services. Southeastern Pennsylvania Transp. Authority v. Brotherhood of R.R. Signalmen, 882 F.2d 778, 784 (3d Cir. 1989). Our Court of Appeals and several courts of appeals explicitly recognize that it is entirely appropriate to look to parol evidence in the context of interpreting collective bargaining agreements.

The Court also rejected the challenge to the Arbitrator's finding that the Company had not established that its actions were consistent with the cba, observing:

In establishing the four preconditions required before subcontracting bargaining unit work (Article II, Section 5D) were interrelated with Article VI, Section 1D, and Exhibit P, the Arbitrator concluded there were limits to PPL's subcontracting right and stated: "the parties negotiated the contracting provision to allow the Company to contract under certain conditions, while allowing the Union to protect bargaining unit work and membership."...  So, while PPL may subcontract bargaining unit work — as evidenced by its subcontracts with PPL Solutions and NCO — PPL's right to subcontract is not unlimited. Based on PPL's limited right, the Arbitrator was correct to balance PPL's subcontracting rights with the rights of Local 1600 employees.

Finding the Arbitrator's award drew its essence from the terms of the cba,  the Court declined to disturb his decision.  [A similar dispute involving Rockwell Collins and IBEW is addressed in Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies]

In Citgo Petroleum Corp. v. United Steelworkers Union, Local No.7-517, Citgo seeks to vacate an award by Arbitrator Alan J. Cook. The Steelworkers grievance claimed that Citgo's use of outside contractors violated the terms of its cba. The management rights provision of the cba recognized the Company's right to "hire contractors" but the contract also provided that the Company wouldn't displace any unit employee due to the use of contractors.

Arbitrator Cook found that the Union had failed to show that the use of contractors in this instance violated the terms of the contract or caused harm to the bargaining unit. He noted that he was not free to ignore the language of the cba and that if he did ignore "the clear and unambiguous terms of the Contract, the Award could be set aside by a court of law." Nevertheless, his opinion continued:

 However, there is another aspect of this case that must be considered. The National Labor Relations Act places on employers a mandatory duty to bargain with authorized employee representatives on subjects that include rates of pay, wages, hours of employment and other conditions of employment (29 U.S.C. Sec. 151 et seq.).

He ordered Citgo to bargain with the union over the issue of the transfer to contractors of work performed previously by the bargaining unit performing work and retained jurisdiction "for ninety days of the date of this Award to give the parties whatever assistance they may need in implementing the terms of the Award."

In its complaint  Citgo asserts that the Arbitrator "had no authority to address this or any other statutory issue" and that his "erroneous conclusion" that Citgo violated a duty to bargain did not draw its essence from the cba. 

Recent Awards - Insubordination, out-of-title work, protected activities, and untruthfulness

Police officer's insubordinate action didn't justify termination

Arbitrator Don B. Hays modified the discipline imposed on a San Antonio police officer who had been accused of insubordination. Grievant was schedule to retire in July of 2017. He planned to utilize his accrued time of to carry him through that date, and to work full time at another job until his retirement became effective. Outside employment required the approval of the Chief. He began his outside employment in September of 2016 with the permission if the department. However, his request to continue that outside employment during 2017 was denied. Believing he had  "constitutional right" to continue to engage in the outside employment grievant "defiantly continued" his outside work despite the denial of permission from the department. Ultimately the Chief placed grievant on "indefinite suspension", effectively terminating his employment.

Finding grievant's conduct insubordinate, Arbitrator Hays concluded that termination was too severe. Arbitrator Hays explained:

Although appellant's reason for his refusal appears to be resourceful, it cannot be realistically
compared to a subordinate's justifiable refusal to strictly obey a supervisory directive based on legitimate safety concerns and/or the risk of irreparable harm. Appellant's potential loss of the USAA job and associated essential outside (second) income does not qualify as a legitimate excuse for such insubordinate actions.
****
On this occasion [Grievant]  was proven to have acted in a patently and punishable insubordinate fashion. However such clearly uncharacteristic behavior appears from the credible and preponderant evidence to have been an “isolated act," mistakenly undertaken in good faith by an experienced, long serviced highly qualified and devoted SAPD police captain; one who had absolutely no proven personality tendencies or disciplinary history which legitimately questions this loyal officer's allegiance to SAPD authority or Chief McManus. While we in no way find [grievant's] isolated insubordinate behavior, to be forgivable, as discussed hereinabove when trying to determine an appropriate disciplinary response, we find Chief McManus' imposition of "summary termination" to be deficient of what we deemed to be essential evidentiary support.

Arbitrator Hay's award can be found here.


Compensation for out-of title-pay

Arbitrator Richard Curreri has upheld a grievance filed by the Warertown(NY) Professional Firefighters Association seeking compensation for demoted Captains. The Union claimed that the former Captains were still expected to perform their former duties but were not being compensated appropriately for performing what was now out-of-title work. Arbitrator Curreri found "an explicit or implicit assignment of the demoted Captains to the work they previously performed ...."He rejected the argument of the City that any informal expectations were not the same as an "assignment" His award can be found here.

Discrimination because of union activities 

  Two recent awards involve discipline claimed to be because of the grievants' union activities.

 In IAFF, Local 1693 and City of Holyoke, Arbitrator Mary Ellen Shea sustained a grievance challenging the suspension and demotion of a Fire Department Captain, and Local Union President, after an investigation into his actions at the scene of a fatal fire.  Arbitrator Shea rejected the City's claim that the investigation was part of a "routine" post incident analysis, and found that "the evidence demonstrates that the investigative procedures and the investigative report ... were not adequate or sufficiently complete to prove the allegations" against the grievant. Concluding that the investigation was a pretext, she found that the City had violated the cba's prohibition on discrimination because of Union activities (in this case grievant's comments in the press critical of the Mayor's and Chief's decisions concerning decisions concerning staffing, see e.g. Questions of response to Holyoke fire arise following brownout of engine)


In Wilkes-Barre Police Benevolent Association and City of Wilkes-Barre, Arbitrator Thomas Leonard sustained a grievance, overturning the discipline of the President and Vice President of the local PBA. The discipline arose because of comments on the PBA's Facebook page critical of certain decisions of the Mayor and police management. Rejecting the City's claim that he postings "violated numerous sections of the department's general orders, Arbitrator Leonard concluded:

This is a case where the City has taken disciplinary action against [grievants] for their exercise of protected rights. While the City does have a managerial interest in maintaining the appropriate access to police reports and having its orders followed, the PBA also has rights. The PBA postings, whoever made them, stated a sincere employee interest in safety of officers. The postings may have been harshly worded, but the law gives leeway to union officials in such instances. The City has not proven that the Facebook postings violated its General Order 1.11 on Social Media and
Networking. The policy itself allows the PBA to use Facebook to engage in “legitimate labor endeavors and/or business." Therefore, even though the Facebook postings were critical of Chief Lendacky and Commander Foy, sometimes in forceful terms, the postings were done with the interests of the officers' safety in mind, which is certainly a legitimate labor endeavor of the PBA in its role as the exclusive representative of the police officers of the City of Wilkes-Barre

Officer's "Untruthfulness" proved just cause for termination

Arbitrator John Barnard denied a grievance filed on behalf of a San Antonio police officer. Grievant had been placed on "indefinite suspension "(i.e dismissed) for allegedly being untruthful during an investigation of his activities in connection with performing inspections of commercial vehicles during his off duty time. Finding merit to some, but not all, of the charges, Arbitrator Barnard noted:

The cornerstone of any sworn police officer is that such officer is to be truthful at all times. That didn't happen here, and as such, there is no alternative but to uphold the indefinite suspension of an officer such as [grievant] who betrays the trust of both the department and the general; public, for whom he is trusted to serve. 

Arbitrator Barnard's award can be found here.

Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies

   
Chicago Tribune, LLC v. Teamsters Local Union No. 727 (ND Ill.)

The Chicago Tribune seeks to vacate an Award of Arbitrator Amedeo Greco. Arbitrator Greco upheld a grievance claiming that the Company refused to pay employees "gap time" pay the Union claimed was required by the cba and past practice. The Tribune's Complaint asserts that the Arbitrator exceeded his authority and improperly modified the cba "when he gave legal effect to a past practice which finds no support in the clear and unambiguous terms of the CBA."  According to the complaint:

Despite the fact that the CBA does not provide for the payment of ten hour gap time pay to a driver for performing work during the driver's scheduled day or night shift, the Arbitrator wrote such a requirement into the CBA and disregarded the limitations on his authority.


Rockwell Collins, Inc. v. International Brotherhood of Electrical Workers Local 1362 (ND Iowa)

Arbitrator Robert Grey sustained a grievance filed by IBEW Local 1362, concluding that Rockwell Collins violated its CBA when it unilaterally outsourced the Custodian and Led Custodian classifications at its Cedar Rapids facility. (Award) Rockwell Collin’s  has filed a Complaint seeking to vacate the award, alleging that the arbitrator "ignored or went beyond the plain text of the collective bargaining agreement and essentially rewrote the collective bargaining agreement creating requirements on Rockwell Collins that did not exist in the agreement as negotiated by the parties."



The Harrison County Coal Company v. United Mine Workers and United Mine Workers Local 1501 (ND WVa)

The Company seeks to vacate an award of Arbitrator Thomas Hewitt sustaining a grievance claiming that the Company had improperly outsourced the installation of a belt drive. The Arbitrator rejected the Company's argument that the installation of a "new, never before used' belt drive was construction work which it could contract out. Arbitrator Hewitt concluded that "the building, installation and moving of belt drives is a totally protected activity at this mine ... ." The Company's  complaint  asserts that the Arbitrator exceeded the scope of his authority, that his award failed to draw its essence from the cba, and that his award of monetary remedies in the circumstances of the case was contrary to "binding arbitral precedent."'


The Monongalia Coal Company Mine Workers and United Mine Workers Local Union 1701

United Mine Workers and United Mine Workers Local Union 1701 v.The Monongalia Coal Company

These two cases involve the same parties, but address different disputes.

Monongalia County Coal Company seeks to vacate an  Award of Arbitrator Ralph Colflesh, finding the Company breached its contract with the UMW when it outsourced certain cabling work at its mine. He found, however, that no bargaining unit employee lost wages as a result because they were either working when the work was performed or had declined the opportunity to work.

Nevertheless, in light of his finding of a contract violation he “join[ed] Arbitrator Drucker in awarding damages to to the Union for this breach, and concur with the principle implied in her award that in general every sustained grievance must have some remedy.” In contrast  to Arbitrator Drucker, he declined to award compensation to employees, noting his belief that employees should not be rewarded for not working when they had the opportunity.” (Arbitrator Drucker’s award can be found here; the Company’s complaint to vacate that award here.)

Instead he ordered the Company to pay the Union its costs for preparing and presenting the grievance, including any legal fees incurred in the grievance preparation, as well as the per hour cost of the union advocate who presented the case at arbitration. In its Complaint  to vacate the award, the Company alleges that the Arbitrator “expressly rejected binding precedent” and exceed his authority by ordering payment of the Union's expenses which the contract required be borne by the union.

In its Complaint, the UMW seeks to vacate an Award of Arbitrator William Babiskin denying a contracting grievance. The Arbitrator declined to address the merits of the grievance because he found that there was no financial loss to any employee. Arbitrator Babiskin noted: " I am a strong believer in the principle of 'no harm, no foul." The Union's complaint asserts that the Arbitrator ignored "the plain language" of the agreement, denied the Union a fair hearing, and instead relied on his own notions of industrial justice to deny the grievance.

Update: The Court's decisions in the coal cases are addressed in  Coal Industry Decisions - Construction or maintenance, remedies for contracting, and "production of coal". The Rockwell Collins case was dismissed as settled. The Court in the Chicago Tribune case rejected the Company's request to vacate the award. It observed that "The Tribune's quarrel is not with the arbitrator's award but rather with its interpretation of it." It granted the Union's request to confirm the award but noted that a determination of whether there were any damages requires further proceedings. Chicago Tribune, LLC, v. Teamsters Local Union No. 727

Postal Service ordered to restore Union leave for partisan political activity

Arbitrator Stephen Goldberg has issued an award finding that the Postal Service breached its agreement with the American Postal Workers Union (APWU) when it unilaterally made changes to its Employee and Labor Relations Manual to prohibit Union Leave without pay for purposes of engaging in partisan political activity.

The Service's action was triggered by a report of the Office of Special Counsel asserting that leave for that purpose was prohibited by the Hatch Act. (OSC Report) 

The OSC investigation was triggered by a complaint submitted by Senator Ron Johnson, Chair of the Senate Committee on Homeland Security and Government Affairs. The Senator had received information from a constituent that thePostal Service was incurring unnecessary overtime costs by granting LWOP for employees to participate in election activities sponsored by the AFL-CIO. These activities included door-to-door canvassing, phone banks, and "get out the vote" efforts.

The OSC recommended that the Postal Service expressly prohibit use of LWOP for partisan political activity.

Following OSC's recommendation, the Postal Service modified its ELRM to specifically prohibit use of LWOP for partisan political activity and to require employees applying for such leave to certify that it wouldn't be used for such purposes.

APWU grieved the Service's actions, asserting that they were contrary several provisions of its CBA, including a Section that provided:

The leave regulations in Subchapter 510 of the Employee and Labor Relations Manual, insofar as such regulations establish wages, hours and working conditions of employees covered by this Agreement, other than PSEs, shall remain in effect for the life of this Agreement.

The CBA also required notice and consultation prior to any changes not otherwise inconsistent with the agreement. 

The grievance was appealed to arbitration, and NALC and the National Postal Mail Handlers Union intervened.

 Sustaining the grievance, Arbitrator Goldberg rejected the Postal Service's argument that its action was compelled by the report and that the dispute was therefore not subject to arbitration. He noted:

The Postal Service argument fails to take into account the limited authority vested in the OSC. As the Unions point out, the OSC does not have the power to determine whether a violation of the Hatch Act has occurred, much less to determine an appropriate remedy for such a violation. OSC is authorized only to investigate allegations of Hatch Act violations, to prosecute alleged violations before the Merit Systems Protection Board, and to issue advisory opinions. It is only the Merit Systems Protection Board which has the authority to determine whether a violation of the Hatch Act has occurred, and if so, to impose an appropriate penalty. An opinion or allegation by OSC of a Hatch Act violation is thus without legal effect, and, contrary to the Postal Service assertion, may be ignored without penalty.
                                                              ***

There exists no basis for inferring that the arbitration provision of the National Agreement was intended to exclude any dispute in which the arbitrator’s decisionmay create the risk of legal proceedings against one of the parties.

For much the same reason, the Arbitrator found the Service's actions were inconsistent with its contractual obligations:

The OPS [sic] does not have the authority to enforce the Hatch Act; only the Merit Systems Protection Board possesses that authority. Hence, the OSC opinion that the ELM violated the Hatch Act is not that of a court (or agency) of competent jurisdiction, and the Postal Service may not rely on the OSC ruling as a defense to the otherwise valid Union allegations that the PostalService’s changes in the ELM violated Articles 5, 10.2, and 19 of the Agreement.

While noting that he was making no determination as to whether the OSC's view might ultimately prove correct, he ordered the Postal Service to rescind the changes to the ELM and make whole any employee who was disciplined or whose LWOP request was denied because they indicated they were requesting "union time" to engage in partisan political activity.  

Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay

Arbitrator Eric Lindauer has found that the City of West Linn, Oregon was justified in terminating a police officer because his Facebook posts contained "what reasonably could be viewed as racist comments." Arbitrator Landauer's award can be found here.

He rejected the Union's claims that the City's policy was ambiguous and failed to adequately inform the employee that his Facebook postings could result in his termination (distinguishing an award of Arbitrator Chuck Miller making such a finding on what Arbitrator  Lindauer deemed to be different circumstances), that the City failed to prove that the posts were simply expressions of political views that were neither racially biased nor advocated violence, and that the views were comments by a private citizen about matters of public concern that were protected by the First Amendment. Concerning the First Amendment question, the Arbitrator observed:

In the Arbitrator's opinion. [Grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.

Finding termination appropriate, he noted as an "additional factor" the County Prosecutor's expressed concern that grievant's testimony in any potential criminal case could be compromised "... particularly in cases where a potential suspect was a minority person, may be politically motivated, or where force may have been used." He also noted what he described as grievant's lack of remorse.

However, Arbitrator Lindauer further found that grievant's supervisor, and several police officials, had been aware of the postings for some time and, contrary to the City's policy, failed to address them or to take action until they received local media attention. As a result he determined that the City bore "some responsibility" for its failure to take active steps to require grievant to remove the postings. He modified his remedy to take this failure into account:

Therefore, in determining the appropriate remedy in this case, the Arbitrator has considered the Department's condoning of [grievant's] Facebook postings. In the Arbitrator's opinion, the Department should be required to pay [grievant's] back pay. It is an approprate remedy because the Department management was aware of the content of [grievant's] Facebook page for a significant period of time and failed to appropriate action to have [grievant] remove the offending content. Instead, the Department did nothing until the issue became a matter of public concern. Therefore, the Department must bear some economic responsibility for its failure to follow its own Policies.

Recognizing that the remedy was "unusual," Arbitrator  Lindauer nevertheless deemed it appropriate in this case. The City reportedly intends to seek to appeal. Arbitrator: WLPD officer's firing justified, but warrants payout

For another case in which the arbitrator denied reinstatement but awarded back pay see Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement

Arbitrator reduces suspension of officer involved in Tamir Rice shooting

Arbitrator Daniel Zeiser has issued an award reducing a ten day suspension to five days for a police officer for conduct related to the shooting of Tamir Rice. Cleveland Police Patrolmen's Association and City of Cleveland.  The grievant was not the officer who shot Rice, and the discipline did not involve the shooting directly. Arbitrator Zeiser noted specifically:

The Arbitrator believes it is important to note that the discipline and this grievance, while they stem from the tragic shooting of Tamir Rice, are not based on the actual fatal shooting. That is to say, the Grievant was not disciplined for any use of force that resulted in Tamir Rice’s death. The use of force issue was determined by the Cuyahoga County Grand Jury and Prosecutor. The discipline in question here was set forth in the three charging letters:

Specification #1: On November 22, 2014, you…did not employ proper tactics when you operated the zone car up to what was reported to be an armed suspect thereby violating the Policy of General Police Order 2.1.01. 

Specification #2: On November 22, 2014, you… Failed to report your arrival time to the radio dispatcher immediately upon arriving at the location of your radio assignment. (JX 5-7). 

Simply put, the Grievant was suspended for using improper tactics and not reporting his and Loehmann’s arrival at Cudell. The issue for the Arbitrator is whether the Employer proved it had just cause for the 10 day suspension.

After addressing, and rejecting, procedural and timeliness objections by the City, the Arbitrator found that the City had established the facts alleged in the specifications and concluded that there was just cause for discipline. He found that grievant was aware that the situation he approached was not an active shooter one and he should have waited for back up to arrive. Additionally the arbitrator found that there was a reasonable basis for the City's claim that grievant had pulled his vehicle too close to the scene. However, he also concluded that these offenses did not fail within the type of offense that fell within Category III of the City's disciplinary matrix, which provided for a minimum of a ten day suspension. Observing that "employing improper tactics, while not as serious as the conduct listed in Group III, is more than a minor violation and warrants more than a warning." Accordingly, he reduced tie suspension from ten to five days. 

Another case, also arising from conduct related to a fatal shooting, but not the shooting itself, is addressed in Reaction to police discipline award highlights mixed expectations about the issue to be decided