Tag Archives: ADR

Teacher improperly allowed "teachable moment" to include discussion of student’s discipline with other students

During Thanksgiving week 2016, students at Stoughton, MA High School were engaged in a school project decorating a Spirit Wall. While this activity was underway, one if the students, “F,” made a swastika out of masking tape and placed it on a recycling bin. Several students, including one who said she was Jewish, objected. F was reported to have said “Well just burn it like they did to the Jews.”

The incident was reported to the Principal and the Dean of Discipline, and F was ultimately suspended.

 On December 1, during F’s suspension, grievant was teaching a Senior  Honors English class. At the beginning of the class, the students were discussing the incident involving F. Grievant was not aware of what had taken place or the nature or extent of any discipline imposed on F. F was not in her class, nor were any of the students who had been present during the incident. According to grievant, her knowledge of the dispute came from her students. Given the student’s discussion grievant decided to try to turn the discussion to a “teachable moment.” She testified she told students that the swastika was a symbol of evil and hate. One of the students informed grievant that F had been suspended for six days. Grievant admittedly participated in the discussion about the length of the discipline, and acknowledged saying that it seemed light. The discussion continued for 10-15 minutes. Realizing that the discussion was not going in the direction she had intended, and that it had become too personal, grievant redirected the class to the day’s lesson.

Upon his return from suspension, F informed the principal that he had been told by other students that grievant had made comments about him. On December 13, grievant’s mothers filed an Incident Form concerning treatment of her son and complaining about comments she alleged grievant had made to her class. The School Superintendent engaged an outside investigator and, after the conclusion of the investigation, issued a Letter of Reprimand to grievant. The letter stated that grievant had violated a provision of the School’s Employee Handbook which provided “As leaders and educators in the Stoughton Public School, we are committed to providing an educational climate that is conducive to student engagement and learning.” The Letter was grieved and the dispute was submitted to Arbitrator Beth Anne Wolfson.

Arbitrator Wolfson upheld the grievance. She noted:

Grievant’s own testimony at the arbitration hearing demonstrated that she engaged in the behavior for which she was disciplined. First, she admitted that when she arrived in her classroom her students were talking about the swastika incident, F’s behavior, and his discipline. Second, although she attempted to redirect the discussion into one concerning universal concepts about the swastika she admittedly failed to accomplish this as the student’s discussion continued in the context of what F did and what discipline he purportedly received. Third, Grievant admitted she participated in the discussion concerning the length of F’s suspension. Accepting as true Grievants statements that she said the discipline seemed light in terms of what had happened to students in other schools does not change then fact that  her comment was made during discussion of a specific student and not in a broader or more general context. Finally, Grievant allowed the discussion F to continue for 10 or 15 minutes when she admittedly should have stopped it sooner.

Arbitrator Wolfson also rejected the arguments of the Teacher’s Association that grievant’s in-class speech was protected by the First Amendment and that grievant had not violated F’s privacy rights, observing:

…the Employer did not discipline Grievant for violating F’s privacy rights. It disciplined her for failing to provide the appropriate educational climate, for failing to perform her roles and responsibilities as a teacher, and form failing to exercise sound judgment, all based on her not failing to stop the conversation her class specific to F, but also for joining in.

  Arbitrator Wolfson’s award in Stoughton Teachers Association and Stoughton School Committee can be found here.

Source: ADR

Pyramiding overtime – Employer challenges arbitrator’s award

The cba between Armstrong Memorial Hospital and Pennsylvania Association of Staff Nurses and Allied Professionals provides, in relevant part, that overtime will be paid after 40 hours worked in any work week. The contract also provides that “Nothing contained herein shall be construed to require overtime pay more than once for the same hours worked, or pyramiding of overtime or premium pay of any kind.” This language had remained unchanged for more than 20 years.

A dispute arose concerning the pay treatment for an employee who worked during Christmas week  2016. Christmas that year fell on a Sunday. Pursuant to the cba, several holidays, including Christmas, “are also counted as hours worked for the purpose of overtime.”  Employees were to receive holiday pay at the straight time rate for holidays not worked. Employees who worked the holiday would receive, in addition to the holiday pay, time and one-half for all hours worked. Grievant received holiday pay for Christmas day. In addition, because she worked that day, she received  pay at time and one-half for the hours actually worked. The dispute between the parties turned on whether the eight hours of holiday pay for Christmas, which she would have received whether she worked or not, were to be counted toward the 40 hours worked in a week.  If it counted, it would have allowed her to earn the overtime rate for several hours worked later in the week which would otherwise have been payable at the straight time rate.

The Union claimed that the Christmas holiday should have been counted as time worked for purposes of calculating overtime. It did not claim that the hours actually worked and paid at the overtime rate should be part of that calculation. The Hospital asserted that “the Grievant was paid eight hours of holiday pay as well as eight hours of ‘holiday worked’ pay at a premium rate … for her work on Christmas … . [S]he seeks to have that same eight hours count again toward a weekly total in excess of 40 hours, thus qualifying her for overtime pay for hours worked later in the week.” It claimed that this position was contrary to the cba “which proscribes the pyramiding of overtime or premium pay of any kind.”

The dispute was submitted to Arbitrator Matthew Franckiewicz for resolution.

Arbitrator Franckiewicz upheld the Union’s grievance. After reviewing arbitration decisions going back to 1951, he found “no consensus among arbitrators as to what ‘pyramiding’ means.” Turning to the facts of the case, and the language of the cba, Arbitrator Franckiewicz concluded that

Under the literal language of Section 10.3 holiday hours are counted as hours worked for the purpose of overtime. I cannot read an ‘unless’ into this language. 

He further concluded that counting the 8 hours of holiday pay towards the 40 hour threshold for overtime did not constitute pyramiding, observing

[t]he Union does not seek to count both the hours actually worked and the holiday pay hours, only the latter. So counting only one set of hours, paid at straight time, would not violate the no pyramiding provisions of the collective bargaining agreement.

Finally, the Arbitrator found no evidence of a past practice which would have clarified the parties intent or understanding. Accordingly he sustained the grievance. His award can be found here.

The Hospital has filed complaint with the District Court seeking to have the Court vacate the award as contrary to the clear language of the cba, and an improper modification of the parties’ agreement.
Source: ADR

Arbitrator rejects permanent disciplinary demotion, upholds one year before restored to former position

Grievant was employed as a Lieutenant with the City of Waterloo, IA Police Department. Over twenty years he had risen through the ranks and he had a generally clean disciplinary record.
On the night of June 12, 2016, while off duty he was involved in an incident with another driver. The other driver had cut off grievant’s vehicle, which his wife was driving. The wife followed the other vehicle into a parking lot and grievant approached the other driver. What followed was disputed, but the other driver sustained mild abrasions from a confrontation. A third driver in the lot called 911 and grievant and his wife departed the scene. Grievant’s wife was able to get the license number of the other vehicle.

Two Waterloo police officers responded to the scene, but after learning that their Lieutenant was involved, referred the matter to the County Sheriff’s office for further investigation. The subsequent investigation disclosed that grievant had “called the dispatcher three times, not to report the incident but to determine if a call had been  made, who was being dispatched to the scene of the incident and the identity of the other driver.” Some time later, grievant used his computer access to obtain information on the other driver.

Grievant was charged with assault causing bodily injury, but he was acquitted. Following an internal affairs investigation that had been suspended during the pendency of the criminal proceedings was concluded, the Chief decided grievant should be demoted from the rank of Lieutenant to the rank of police officer with a resulting reduction in salary.

The demotion was grieved and submitted to arbitration before Arbitrator Hugh J Perry.  Arbitrator Perry found cause for discipline, but deemed a permanent demotion excessive. He concluded:

The issue that remains is whether the discipline imposed was appropriate and for just cause in light of the facts and the parties’ collective bargaining agreement. …  The problem with a disciplinary demotion is that it has no term. It could be for a year or a career. What has effectively happened here is the termination of a Lieutenant and his rehire as a Police Officer.  I am inclined to agree with the Union that Grievant’s chances for advancement or regaining any supervisory role in this department are unlikely.  Viewing Grievant’s positive 20 year career with the Waterloo Police Department leads me to conclude that a two rank demotion here is too severe under the circumstances. Grievant’s past record demonstrates that he undid all of that good work in one incident. If corrective discipline has a place, it is here. Grievant’s record demonstrates that he can learn from his mistakes. It also indicates that he can be an effective and able leader and a positive member of the Waterloo Police Department. Rather than a two rank demotion, a more appropriate and effective corrective remedy would be a temporary demotion to a police officer for a period with an appropriate reduction of pay and benefits followed by reinstatement to the rank of Lieutenant.

Accordingly, Arbitrator Perry ordered that grievant’s demotion be limited to a one year period followed by his reinstatement to his position as Lieutenant.  Arbitrator Perry’s award in City of Waterloo and AFSCME Local 1195 can be found here.

Issues arising from disciplinary demotions are also addressed in Disciplinary Demotions- Two Recent Cases and Mayor improperly interfered with discipline of Fire Captain
Source: ADR

A sleeping ferry engineer and a state trooper without a weapon

Two recent cases address issues created when an initial disciplinary action has not been fully thought through or the basis for it is not clearly articulated.

Discipline in excess of settlement agreement cannot be enforced 

Timothy Wood was employed as a Chief Marine Engineer aboard the Staten Island Ferries. During a shift he was observed sleeping during docking, in violation of docking procedures. No formal disciplinary was taken but Wood entered into a settlement agreement admitting that he had been sleeping and agreeing to a thirty day suspension. The agreement further provided that it was “executed in consideration of the Department’s resolution of the aforementioned charge without the furtherance of disciplinary action in this matter.”
Upon his return to work, Wood was advised that he would no longer be allowed to work in his recently bid job but would be assigned to non-passenger service dock work. He was thereafter prohibited from bidding on jobs in his title but was limited to bidding on Marine Engineer positions. His union, Marine Engineers Beneficial Association, pursued a grievance on his behalf asserting that these restrictions were contrary to the bidding procedures of the cba. Arbitrator E. David Hyland sustained the grievance, finding that the restrictions placed on Wood after his return to work were “directly related to the same misconduct/incompetence alleged as part of the parties disciplinary settlement” and were contrary to grievant’s contractual rights.
The City sought to vacate the award, referencing the 2003 Staten Island ferry crash and arguing that it was contrary to public policy to allow Wood to be restored to his Chief Marine Engineer position and threatened public safety. It  also claimed that restoring grievant to his CME position exposed the Captain to potential liability under the Seaman’s Manslaughter Statute.
The Court rejected this claim, noting:

The court does not find that the award, by its own terms, violates the Seaman’s Manslaughter Statute, since it does not direct respondents to engage in misconduct or negligence, nor does it require [the Captain] or any other DOT employee to “knowingly and willfully” cause “fraud, neglect, connivance, misconduct, or violation of law.” The award merely finds that respondents violated the collective bargaining agreement by imposing additional punishment after the settlement agreement had been entered into.

While recognizing the public safety concerns, the Court found that the City did not find that grievant’s actions warranted these restrictions when it first entered into the settlement agreement and that it had failed to articulate any act since the settlement which would lead to any public safety concern. 
Accordingly, the Court confirmed the arbitrator’s award. Marine Engineers’ Beneficial Association v. City of New York

Court upholds award, finding absence of evidence to support the charges

A Pennsylvania State Trooper (grievant) became romantically involved with another trooper. The relationship ended in 2014, and the other trooper filed a number of complaints alleging that grievant had engaged in harassing behavior. These complaints were investigated  and grievant’s captain and the Department’s EEO office found them unfounded. In December of 2015, the other trooper filed with the court for a temporary Protection From Abuse (PFA) order. A temporary order, later converted to a permanent order was issued, which among other restrictions prohibitrd grievant from carrying any firearm until May 2018. Grievant was placed on restricted duty for the duration of the time the PFA was in effect. In October of 2016 the Department issued a Notice of Penalty dismissing grievant, citing violation of two departmental regulations, Unbecoming Conduct and Conformance with Laws. The notice did not list as a reason for the discipline an assertion that  grievant was unable to perform an essential job function because he could not carry a weapon. A grievance over the termination was submitted to expedited arbitration. The arbitrator issued an Award and Remedy that proved in full:

The grievance is sustained, primarily because the Department’s decision to discharge is based on the underlying incidents of harassing conduct alleged in the PFA that were the subject of the first two internal investigations and found `not sustained’ and that were neither proven at the arbitration hearing nor considered when the Disciplinary Action Report was issued. Accordingly, the Department did not have just cause to discharge [Grievant].As the remedy, the Department is directed to reinstate [Grievant] to his former position (i.e., restricted duty status during the time the PFA remains in effect) with no loss of seniority. The Department is further directed to make [Grievant] whole for any losses incurred as a result of his discharge, including but not limited to back pay and benefits, less any interim earnings. The Arbitrator shall retain jurisdiction of the case for the sole purpose of resolving any disputes over the implementation of the remedy.

The Department sought to vacate the award. It claimed that the arbitrator’s award was in excess of his powers because he reinstated grievant to restricted-duty status even though he was prohibited from carrying a gun. It asserted that the cba only provided for such status when an internal investigation is pending and prior to a Notice of Disciplinary Proceedings. A split Commonwealth  Court rejected the Department’s arguments. Noting the very restrictive scope review of such awards, the Court concluded:

Because the NDP did not discharge Grievant because of his inability to carry a firearm or carry out essential job functions, the limited issue before the arbitrator was whether the aforementioned reasons demonstrate “just cause” for discharge, and “[i]f not[,] what shall the remedy be?” (R.R. at 7a-8a.) Because the award does not require the PSP to perform an illegal act or an act that it could not do voluntarily, the arbitrator did not exceed his authority. Moreover, because the parties stipulated that the arbitrator had jurisdiction to decide whether there was just cause to discharge Grievant and to decide the remedy, the arbitrator clearly acted within his jurisdiction.

The Court also found no error in the arbitrator’s conclusion that the Department’s failure to present first hand evidence of the claimed violations, (relying instead on the PFA)  was insufficient to establish just causePennsylvania State Police v. Pennsylvania State Troopers Association.
[The issue of the impact of a law enforcement officer’s loss of the ability to cary a weapon is also addressed at Police officer who lost license to carry weapon properly terminated and Award reinstating police officer without License to Carry weapon confirmed]

Source: ADR

Conflicting awards arising from same event are not "arbitrary and capricious" – arbitrator’s finding of no just cause upheld

A Cleveland police chase ultimately resulting in the fatal shooting of two civilians resulted in the discipline of a significant number of officers and supervisory personnel. Grievances involving the discipline of several police sergeants were submitted to arbitration. Arbitrator Nels Nelson upheld discipline of Sergeant Michael Donegan. While finding termination too severe, Arbitrator Nelson ordered the two year demotion of Sergeant Donegan for his conduct during the pursuit. Arbitrator Nelson’s award can be found here. Separately, Arbitrator Dennis Minni sustained a grievance filed on behalf of three sergeants finding an absence of just cause for discipline. Arbitrator Minni’s award can be found here. The apparent inconsistency between the two awards was noticed in the press. Arbitrators reach contrary verdicts in cases of Cleveland police supervisors disciplined in deadly chase

The City of Cleveland sought to set aside the award of Arbitrator Minni, but the trial court upheld, in relevant part, Arbitrator Minni’s award. The City appealed, and the Ohio County of Appeals has now affirmed.  Cleveland v. Fraternal Order of Police, Lodge 8. The Court summarized the City’s argument:

On appeal, the City alleges that the “award is clearly beyond the arbitrator’s authority, is beyond the essence of the agreement, and denies the parties the benefit of their agreement.” As support for its position, the City compares this case to Fraternal Order of Police, Lodge 8 v. Cleveland, 8th Dist. Cuyahoga No. 102565, 2015-Ohio-4188, in which this court affirmed the two-year demotion imposed by an arbitrator regarding Cleveland Police Sergeant Michael Donegan for his role in the same November 29, 2012 pursuit. Donegan held the same departmental rank as the Grievants in the case at hand and was also accused of failing to supervise and violating departmental polices during the pursuit. Therefore, according to the City, under the CBA, it is arbitrary and capricious if the Grievants are not subject to the same or similar discipline as Donegan. However, the discipline resulting from the two arbitrations is quite different: Donegan received a two-year demotion with loss of pay and the Grievants in the instant case received no discipline. This, the City argues, is arbitrary and capricious.

The Court rejected the City’s argument. It found Arbitrator Minna’s decision on whether there was just cause for the discipline to be expressly authorized by the cba. Accordingly, the decision drew its essence from the contract. While noting that the two awards may be “hard to reconcile,” it found that Arbitrator Minna’s decision was neither arbitrary nor capricious. Given the limited scope of review of arbitration awards, and the parties agreement to submit such disputes to an arbitrator for resolution, the Court affirmed the lower court decision confirming the award. 

Source: ADR

Diversity – or a lack of it – in the Arbitration World

This post was co-authored by Matthew Rushton and Natasha Mellersh

Lack of diversity is no secret in the arbitration world. It is regularly discussed at conferences, cast into the spotlight by organisations like Arbitral Women, users of arbitration and practitioners themselves. If the first step towards recovery is acknowledging the problem, that step has been taken and measurable, if modest, progress has been achieved. Furthermore, the focus has moved from accepting the problem to identifying the causes and looking at possible solutions.

Source: JAMS ADR

Methods in mediation: the caucus or the joint session?

At a recent conference in Milan, held at the University of Milano-Bicocca University, on M&A and dispute resolution, mediation was a hot topic. Panellists discussed a number of areas ranging from mandatory mediation to arbitrating M&A disputes.

One of the key issues discussed was that of caucusing, a process in which the mediator speaks to the parties separately and privately during a mediation, away from the main meeting room. Caucusing is often combined with a joint session where both parties are present. However, some mediators prefer to keep both parties separate for the whole duration of the mediation, performing what is termed as “shuttle diplomacy”.

Source: JAMS ADR

Deluded or excluded: deciding who’s a good mediator

In a saturated market, many believe they possess the training, background, analytical capabilities and interpersonal skills to be a best-of-breed mediator. But they’re not.

Are these individuals deluded or simply excluded? If the latter, then who makes this market, and on what basis?

One route into this question is via another, arguably more esoteric but equally unregulated profession: that of the professional artist. As befits a $45bn market, the artworld has some rather better thought-through answers to the related but more challenging question of “who decides what is good art?”

Source: JAMS ADR

A new push for Mediation in the EU

The European Parliament recently adopted a Resolution on the implementation of the EU Mediation Directive (2008/52/EC). The new legislation contains recommendations further encouraging the use of mediation in the EU for civil and commercial disputes.

Initiatives include increasing the number of cases where courts invite parties to use mediation; urging a greater focus on best practice – including requiring parties to state that ADR has been attempted before proceeding in court, and financial incentives to make mediation more economically attractive.Other areas of focus include information campaigns, an emphasis on quality standards and the development of national registers of mediators. 

Source: JAMS ADR