Arbitrator upholds termination of Sheriff's Deputy for off duty use of force

This case comes at a time one report notes " "[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."  Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force 

In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. 

The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.

Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force." 

On the propriety of termination, the Arbitrator noted:

The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment.

Two arbitrators address the issue of the COVID pandemic as a force majuere event

Two recent awards involve questions concerning the existence or impact of the Corona virus as a force majeure event, potentially excusing claimed violation of the parties' agreements.

In American Association of University Professors - University of Akron Chapter, Arbitrator Jack Buettner concluded that the force majuere clause privileged the University's actions when it implemented a "retrenchment." 

The effects of the COVID pandemic are certainly unforeseen and surely out of anyone’s control. The number of cases fluctuates from day to day, week to week, and location to location sending counties in Ohio from a Level 2, Orange, to a Level 3, Red, while hopefully avoiding the Level 4 designation which signifies severe exposure and spread and could result in another state of emergency. Cases of COVID on college campuses have been cited as one of the factors that have pushed counties into the Red zone. [Bamforth, E. (2020, September 4) Plain Dealer, p. A5.] The pandemic is affecting colleges in general as cited in Kiplinger’s Personal Finance. (5 Ways College is Changing. 9/2020, p. 44) There is lower enrollment as families struggle through the recession, tighter budgets as student revenue decreases, federal and state funding cuts, and declining government budgets. In an effort to balance college budgets, smaller staffs are being seen as faculty is laid off or furloughed. Circumstances remain in flux as the state grapples with the disease and its spread. COVID is, indeed, a catastrophic event, and it’s resulting impacts are unforeseeable and beyond the University’s control.

Having established that a force majeure did, indeed, exist, the University needed to satisfy the requirements in Section 1(A)  ...

Arbitrator Buettner concluded further that the pandemic did not relieve the University from complying with certain other obligations of the contract "which are feasible and possible to implement since there is no immediate financial impact  or time frame."

In Alaska Airlines, Inc. and Aircraft Maintenance Fraternal Association, Local 32 a panel chaired by Arbitrator Frederic Horowitz addressed a dispute that "arose as the product of economic disruption caused by the global COVID pandemic plaguing the travel industry." The parties disagreed about the scope of certain job security language in their agreement. 

Rejecting the position of the Company, the panel concluded that the applicable provisions "confirms the plain language of the parties' Agreement [and] supports the position of the Union."

    The parties are seeking expedited resolution from the System Board of good faith yet irreconcilable differences about the application of force majeure provisions in Paragraph 2. of LOA #9 to the job security provisions in Paragraph 4. of that LOA as well as to the impact if any of those protections on the seniority provisions in Article 9 K.2. of the Agreement. When negotiating the Transition Agreement in 2019, neither party anticipated the massive economic disruptions caused by the global pandemic in 2020. The System Board in these circumstances cannot attempt to presume or conjure what the bargaining parties would have done had the subject been raised in negotiations. Rather, the Board can only interpret and apply the existing contract provisions in a manner consistent with accepted standards of contract construction in light of the unique facts presented.

    In Issue No. 1., the evidence supports a finding the job security provisions in Paragraph 4. of LOA #9 are not subject to the force majeure provisions in Paragraph 2. based on the plain language of those provisions and the absence of a mutual intent manifested otherwise during bargaining.

Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement

 An earlier post, Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement,  noted a complaint filed by Dana Corp seeking to set aside an award of Arbitrator Daniel Kininmonth.  That award involved the termination of an individual who was subject to a last chance agreement (LCA). 

The LCA provided:

In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination. 

Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.

The Arbitrator found that grievant had engaged in the conduct he was accused of, and that this conduct was in violation of the LCA. However, observing that "An employee who signs a last chance agreement only gives up the rights him or her expressly agrees to give up" the Arbitrator found that the LCA in this case did not expressly exclude the principle of "just cause."

 Arbitrator Kininmonth found that grievant had been subjected to double jeopardy — he had  been issued a "written warning" for an offense he was subsequently terminated for.

The Arbitrator rejected the Company's claim that he was without authority to consider the question of Double Jeopardy in the presence of a Last Chance Agreement:

The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.

The District Court for the Eastern District of Kentucky has now confirmed the award, rejecting the Company's claim that the Arbitrator  acted outside the scope of his authority and did not carry out his role of interpreting the LCA  but instead utilized his own notions of "just cause." Dana Incorporated v. International Union, United Automobile, Aerospace and Agricultural Implement Workers 

The Court concludes:

Dana argues that arbitrators may not examine just cause under last-chance agreements, pursuant to the Sixth Circuit rulings in Ohio Edison Co. v. Ohio Edison Joint Council, 947 F.2d 786, 787 (6th Cir. 1991) and Bakers Union Factory No. 326 v. ITT Cont'l Baking Co., 749 F.2d 350, 351 (6th Cir. 1984). ... But the Arbitrator distinguished those cases as involving instances where the arbitrator failed to follow the terms of the last chance agreement at issue by mitigating the employee's termination (when the agreement clearly called for termination). Instead, the Arbitrator advised that, he "had not ignored the LCA," ... and that the LCA "does not exclude the principle of `just cause.'"... Although the LCA here called for termination, the Arbitrator, after finding "just cause" and related procedural protections remained, found a procedural double jeopardy violation (which he deemed an affirmative defense, not a mitigating factor) when the Company punished Akerman twice for the same conduct. ... This Court need not decide whether that distinction is too fleeting to matter. Perhaps the jump from "defense" to "affirmative defense" was a mistake. Indeed, this Court may have reached a different conclusion, but this Court's "task is not to choose the best interpretation." ...

Finally, Dana argues that the Arbitrator went outside of his authority in considering affirmative defenses because the LCA did not allow for an affirmative defense.... True, but the LCA did not expressly disallow affirmative defenses either. The Company drafted the LCA and could have easily defined the term "legitimacy" to avoid this dispute and foreclose any procedural due process arguments. See Zeon Chemicals, 949 F.3d at 985 ("Had the company clarified two features of this agreement, we do not see how the arbitrator could have plausibly contradicted them.") Given the inartful language, the Court will "leave the parties to what they bargained for." Zeon Chemicals, 949 F.3d at 982. Here, they tasked the Arbitrator with determining the legitimacy of Akerman's discharge. This is precisely what he did. He applied the terms of the LCA (including its "legitimacy" provision) to the facts of Ackerman's discharge. Whether he reached the right outcome is neither here nor there. The parties "bargained for an arbitrator's interpretation of the contract, not a federal judge's." Econ. Linen, 917 F.3d at 513. With all of Dana's arguments met, the Court finds that the Arbitrator did not act outside the scope of his authority and that he was, at a minimum, "arguably construing or applying the contract." Zeon Chemicals, 949 F.3d at 983 (quoting Misco, Inc.,484 U.S. at 38). Given the deferential standard, the Court will not disturb his decision.

Arbitrator Kininmonth's award contains a detailed review of cases discussing the impact of a LCA on an Arbitrator's authority. 

Arbitrator finds Federal Bureau of Prisons failed to establish a BFOQ defense for refusing to assign female staff in an all male prison to ""Dry Cell" and suicide watch duty.

 In his award in  U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Memphis Tennessee  and American Federation of Government Employees, Local 3731, Arbitrator Daniel Kininmonth addresses the balance between the rights of male inmates to bodily privacy and the rights of female staff to be assigned to guard them.

FCI Memphis is an all male, medium security facility. The grievance in issue involved the Bureau of Prisons' decision to exclude female correctional officers (or supplemental staff) from Dry Cell or Suicide Watch. Where an inmate has ingested contraband or concealed contraband in a body cavity, he may be placed in a cell with no toilet, faucet or shower (a dry cell). The inmate is then closely observed "until the inmate has voided the contraband or until sufficient time has elapsed to preclude the possibility that the inmate is concealing contraband ..." In Suicide Watch, the correctional officer continuously watches the inmate to prevent him from harming himself. The grievance arose when female correctional officers were denied the opportunity to handle these assignments. 

The parties raised a variety of issues in support of their respective positions, but one of the issues was the BOP's assertion that its policy of excluding women from these assignments justified by "business necessity" and that the applicable agreement recognized its right to assign work. The union claimed that the exclusion was discriminatory on its face and could only be justified if gender was a Bona Fide Occupational Qualification (BFOQ) for the assignment.  While recognizing that inmates had a legitimate privacy interest, the Union argued: 

Privacy protection directly affects the essence or central mission of prisons.  ...  The Sixth Circuit has uniformly held that "privacy" relates to the essence of prison business. Million v. Warren Cty., Ohio, 2020 U.S. Dist. LEXIS 28000 (S.D. Ohio 2020). Yet, an inmate's right to privacy must be balanced against the legitimate objective of providing equal job opportunities without regard to sex pursuant to Title VII. Griffin v. Michigan Dep't of Corrections, 654 F. Supp. 690, 701 (E.D. Mich. 1982). The courts balance both privacy rights and Title VII. The degree of the balancing depends on the inmate's gender. Occasional and inadvertent observation of unclothed inmates by cross-gender guards is usually tolerated by the courts. This is particularly true of female guard's observing male inmates

After  an extensive review of the case law and legal commentary on this question, Arbitrator Kininmonth concludes that the BOP failed to establish that its position was consistent with a BFOQ defense:

In this case, (1) FCI Memphis has not asserted a factual basis that assigning female staff to "Dry Cell" or "Suicide Watch" would undermine the prison's operation. (2) Admittedly, an inmate's privacy at FCI Memphis is entitled to some protection under the law. However, the inmates in "Dry Cell" and "Suicide Watch" are clothed. Therefore, there is no privacy violation. (3) There are reasonable alternatives to protect the inmate's privacy. If the inmate has the urge to urinate or have a bowel movement in the "Dry Cell," the female staff member can summon a male colleague and temporarily withdraw. The inmate in "Suicide Watch" who needs to urinate or defecate can be provided a towel, blanket or privacy screen in his cell to protect his privacy. FCI Memphis cannot prove the three (3) factors necessary to sustain a "Privacy BFOQ Defense." 

The Arbitrator also considered and rejected the BOP's claims that the grievance was insufficiently specific and untimely.

Update: The Federal Labor Relations Authority denied the Agency's exceptions and upheld Arbitrator Kininmonth's award. 73 FLRA No. 5 (May 26, 2022). The opinion can be found here.

 

Another case rejecting termination of an officer because of prosecutor's unsupported decision not to use them as a witness

A recent post (State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer) addressed the issue of a City's termination of a police officer after the prosecuting attorney's office announced it would not use the officer as a witness in any proceeding.

In a case raising a similar issue, the Commonwealth Court of Pennsylvania has affirmed a decision refusing to vacate an arbitrator's award that reinstated a police officer dismissed because the District Attorney's office would not prosecute cases based on the uncorroborated testimony of the officer. Borough of Gettysburg v. International Brotherhood of Teamsters Local 776, Police Labor Organization.  

The City's action took place after it received a letter from the District Attorney's Office confirming its position but requesting that the City not "disseminate this letter or the information contained therein to any other non-law enforcement entity."  At a Loudermill hearing, the officer was advised of the contents of the letter but a copy of the letter was not produced. The officer's employment was subsequently terminated. The matter was grieved and the Arbitrator found no just cause for the termination.

Seeking to vacate the award, the City claimed that it improperly ordered it to reinstate an officer who could not perform the essential duties of his position. Rejecting this position the Commonwealth Court noted:

Here, unlike in SCI-Forest, the Arbitrator did not find Grievant committed misconduct and place restrictions on Grievant as a result thereof. Rather, the Arbitrator opined: “I am unable to address the substantive merits of the Borough’s termination decision in this case, since I find that the Borough failed to provide [] Grievant adequate procedural due process prior to terminating his employment.” ...  In sum, the Arbitrator determined that, since Grievant was not given any basis for his discharge, and therefore no ability to defend himself at the required Loudermill hearing, the Borough “did not have just cause to fire him.”

The Court also rejected the City's claim that it was denied due process because the Arbitrator concluded that it had an obligation under Loudermill to inform the grievant why the DA's Office no longer intended to prosecute cases involving the Grievant. The Court concluded:

Here, the Borough is essentially asking this Court to find that the Borough’s denial of Grievant’s due process rights in not providing the reasons for his dismissal is justified because the Borough could not obtain said information, and for the Arbitrator to base his award on the Borough’s failure to provide said information denied the Borough its due process rights. This Court cannot draw such a conclusion. The Borough chose to discharge Grievant due to a letter for which the underlying basis was unknown. Thus, the Borough put it itself in a situation wherein it could not provide the required information, not the Arbitrator. Accordingly, the Borough’s due process rights were not violated.

State Attorney's refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer

Grievant began his employment with the Marco Island, FL Police Department in October 2006. He was hired 18 months after having been terminated by the Collier County Sheriff's Office after it was claimed he had given misleading testimony during an investigation.

In November 2010 grievant was dispatched to a DUI. He testified in connection with that case at an administrative hearing. In February 2011 the presiding judge at that proceeding received a report of an allegation by another bargaining unit employee that grievant had lied during the hearing. The allegation was reported to the City and a meeting was held between the Police Chief and a representative of the State Attorney Office (SAO). No action was taken by the City, but the SAO independently reviewed the matter. In November 2013 the SAO sent a letter to the Police Chief advising that because of the allegation of untruthfulness during the 2010 hearing, and grievant's earlier dismissal from the Colier County Sheriff's Office, grievant would no longer be used as a witness in the prosecution of criminal cases. Six months later, an Internal Affair's investigation was opened relating to the alleged untruthful testimony in 2010, but the investigation remained uncompleted when the assigned investigator left the Department. 

In February 2015 the SAO sent a second letter to the Department, restating its position that it would not use grievant in the prosecution of criminal cases. A new investigator was assigned to the still open Internal Affairs investigation, and in April 2016 a report was issued sustaining the allegation of untruthfulness in the 2010 testimony. However, because of the length of time that had elapsed, grievant could not be disciplined.  Grievant continued his employment but the SAO declined to prosecute on almost 80% of the cases grievant handled.

In January 2019 a new City Manager was appointed, and, after an article (State attorney's office declined to prosecute multiple Marco Island criminal charges last month due to 'Brady cop') appeared in a local newspaper in February 2019,  the City advised grievant that he would be removed from his position as a police officer. The City  noted the termination was premised solely on grievant's inability to testify, and not on either the allegations raised in connection with his employment by the Collier County Sheriff's Office or the results on the Department's Internal Affairs investigation. It held out the possibility of transfer to a civilian position if one existed, an offer grievant declined.

A grievance was filed, and ultimately submitted to Arbitrator Gerard Fowler for resolution.

Arbitrator Fowler rejected the City's reliance on the management rights provisions of the cba, and its claim that the proposed removal was not a disciplinary action.  He observed:

Whether a party chooses to refer to a grievant's removal as a termination rather than a discharge is a distinction without a difference. Any union member covered by a collective bargaining agreement with a just cause provision must be provided with just cause if the termination is to stand. Accordingly, the Arbitrator finds that based upon all of the evidence and testimony before him Grievant was discharged as that term is set forth in arbitral precedents. Therefore, this arbitration centers on whether the Employer properly discharged Grievant.

 Turning to the merits, Arbitrator Fowler concluded that the City's reliance of the refusal of the SAO to use grievant as a witness, in the absence of any evidence that he had in fact engaged in any dishonest behavior, was insufficient to support the termination. He found:

The record clearly shows the City never attempted to prove or present any proof regarding Grievant's dishonesty. Grievant did present testimony indicating that he did not misrepresent any fact while testifying in 2010 or any other time. Clearly the only basis to terminate Grievant from his position is based upon the letter from the State Attorney. This letter is unsupported by evidence or details of any investigation on the part of the SAO. There is no judicial determination on the record indicating that Grievant has ever been dishonest in his testimony 

Accordingly, the testimony and evidence in this case failed to establish just cause to discharge grievant. The grievance must be sustained. Grievant is entitled to be reinstated to his position of police officer and made whole for all of the losses he suffered as a result of his discharge by the City, and it shall be so ordered.

Arbitrator Fowler's award in City of Marco Island, Florida and Gulf Coast Florida Police Benevolent Association, Inc. can be found here.

Similar issues are addressed in Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor's placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination and Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness

Court rejects Nurses Association request for reverse Boys Market injunction requiring hospital to provide ppe and other Covid related safety measures

The District Court for the Southern District of New York rejected the request of the New York State Nurses Association for a reverse Boys Market injunction seeking to compel Montefiore Medical Center to take certain steps to mitigate the risk that nurses might contract Covid-19 while the Union's grievance was pending. The New York State Nurses Association v. Montefiore Medical Center.

The Union sought, inter alia, to have the Medical Center provide PPE, space to don and doff such equipment, and "adequate" coronavirus testing. A copy of the Union's complaint for injuntive relief is available here.

Noting how narrow the reverse Boys Market exception is to the Norris LaGuardia limitation on injunctions in labor disputes, the Court found it was without jurisdiction to grant the requested injunction. It agreed with the position of the Medical Center that the requested injunction "does not seek to preserve the status quo. Instead, it 'seeks to create a new status quo that gives the Union everything (and more) it requests in the grievance.' "

While denying the request, the Court encouraged the parties to attempt to resolve the dispute quickly:

The Court does so with a plea to both sides to continue their efforts in good faith to reach an amicable resolution of their disputes. Both sides presumably share the ultimate goal of maximizing protections for healthcare workers on the front lines of the battle against a vicious disease without compromising patient care. And the parties are plainly in a better position than either the Court or an arbitrator to find the best ways to achieve that goal despite limited resources and ever changing circumstances. Failing an amicable resolution, the Court hopes that the parties can and will expedite the arbitration proceedings. This Court may lack authority to address NYSNA's concerns, but to the extent these concerns are valid, it is critical that they be addressed as swiftly as possible. Lives may hang in the balance, and the NYSNA nurses deserve as much.