Chapter 17 - ARBITRATION / MEDIATION
Article 17-8
Article 17-7 [also posted in Article 8-9]
BACK PAY: CLEVELAND IAFF LOCAL 93 SOUGHT BACK PAY FOR OFFICERS WHO WERE NOT PROMPTLY PROMOTED AFTER 2002 TEST - ARBITRATOR RULED AGAINST LOCAL – COURT AGREES - CITY WAS ORDERED BY FEDERAL JUDGE TO HOLD UP ON PROMOTIONS WHILE LAWSUIT BY MINORITY FIREFIGHTERS AND OFFICERS WAS PENDING
On Nov. 18, 2010, in Association of Cleveland Fire Fighters, Local 93 v. City of Cleveland, the Ohio Court of Appeals for Cuyahoga County, 2010-Ohio-5597, 94362 (OHCA8), held 3 to 0 that an arbitrator did not exceed his authority in holding the City did not violate the Collective Bargaining Agreement provision requiring promotions within 30 days of a vacancy, since a federal court had barred those promotions in separate litigation. Full opinion can be read: http://www.sconet.state.oh.us/rod/docs/pdf/8/2010/2010-ohio-5597.pdf.
In June, 2002, just three days before the city’s Civil Service Commission were to hold a promotion examination, a group of 11 minority firefighters and officers filed a lawsuit in U.S. District Court, claiming prior examinations in 1996, 2000 and 2002 were biased against minorities. Luke v. City of Cleveland, N.D. Ohio, No. 1:02 CV 01225.
The federal judge allowed the June, 2002 promotion exam to be taken, but barred the city from making any promotions. The city filled these officer positions with temporary appointments.
The city asked the federal judge to lift the injunction in March 2003, again in April 2003, and in July 2005. Each request was denied, while Luke v. City of Cleveland was pending trial. The lawsuit went to trial in late 2006, and Court ruled for the minority plaintiffs regarding the 1996 promotional exams (but found no racial bias in 2000 and 2002 tests).
The city settled with the Luke plaintiffs, agreeing to promote 15 minority plaintiffs. These promotions were in addition to the 29 office vacancies from the 2002 exam. The settlement was finalized in Feb. 2007 and the Federal judge lifted his injunction. All remaining vacancies were filled based on the 2002 promotion test results.
UNION GRIEVANCE
Local 93 filed a grievance, seeking back pay for officers not promoted within 30 days after the 2002 promotion list was certified. The matter went to arbitration, and the arbitration held that the city did not violate the Collective Bargaining Agreement since the Federal judge had barred the promotions.
The Court of Appeals flatly rejected the union’s appeal:
“Arbitration is a favored method of resolving disputes, Williams v.Aetna Fin. Co., 83 Ohio St.3d 464, 1998-Ohio-294, 700 N.E.2d 859, so the scope of judicial review of the arbitration proceedings is limited by statute and construing case law. Goodyear Tire & Rubber Co. v. Local Union No. 200, United Rubber, Cork, Linoleum & Plastic Workers of Am. (1975), 42 Ohio St.2d 516, 520, 71 O.O.2d 509, 330 N.E.2d 703.
“Under R.C. 2711.10, a court can vacate an arbitration award for one of four reasons, all of which relate to the conduct of the arbitrator: fraud, corruption, misconduct, or exceeded powers. The union’s basis for seeking reversal is the fourth ground of R.C. 2711.10(D) — that the arbitrator so imperfectly executed his powers that a mutual, final, and definite award upon the subject matter submitted was not made.”
***
“The union’s position is that the arbitrator exceeded the scope of his authority by finding that there were legal justifications for the city’s breach of the collective bargaining agreement. It argues that the arbitrator was limited solely to the question of whether a breach occurred and, having determined that breach did occur, could not consider any possible justifications for the breach because those justifications were beyond the scope of the matter submitted.
The arbitrator did not exceed his authority by considering contract defenses that would potentially discharge performance. In Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), 388 U.S. 395, 402-404, 87 S.Ct. 1801, the United States Supreme Court held that where a contract contains an arbitration clause, the court may only consider defenses relating to the arbitration provision; defenses addressed to the contract itself must be decided by the arbitrator. The union’s position in this appeal ignores well-established law that applies principles of contract construction to the arbitration of promises contained in collective bargaining agreements. See Alexander v. Wells Fargo Fin. Ohio 1, Inc., 8th Dist. No. 82977, 2009-Ohio-4873, at ¶10. Without question, issues relating to performance and non-performance under the collective bargaining agreement were within the arbitrator’s authority.
Legal Lessons Learned: When a Federal judge issues an injunction prohibiting a city from making promotions, the city has no choice but to follow that order until it is withdrawn or a higher federal court reverses the order.
Article 17-6
OHIO: ARBITRATION - POLICE OFFICER WAS FIRED AFTER PATROL CAR STRUCK BY BICYCLE AT INTERSECTION – ARBITRATOR ORDERED HIM REINSTATED AND CITY APPEALED - COURT OF APPEALS UPHOLDS ARBITRATOR SINCE CBA SILENT ON BURDEN OF PROOF
On Dec. 11, 2009, in City of Piqua, OH v. Fraternal Order of Police, Ohio Labor Council, 2009-Ohio-6591 (Court of Appeals for Second District, Miami County), the Court (3 to 0) reversed the trial court’s order, and held that the arbitrator had the authority under the collective bargaining agreement to order Patrol Officer Brett Marrs back to work.
It was a dark night on May 4, 2008 when Officer Marrs stopped at a four-way intersection. He came to a full stop, and as he proceeded through, a bicycle struck the front side of the cruiser. Fortunately the bicyclist had jumped off his bike prior to the collision and was not serious hurt.
Officer Marrs had been disciplined three prior times in the past two years. His prior discipline included: backing into another cruiser (written reprimand); excessive use of Police Department issues cell phone for personal use (one-day suspension); and late for duty assignment (written reprimand).
The Police Department decided this accident was, in the words of the Court, the “straw that broke the camel’s back.” They suspended Officer Marrs, and began termination proceedings. They also issued him a court citation for “improper starting” at the intersection, and brought two administrative charges: violation of Standard of Conduct 06 (committing unsafe act) and Standard of Conduct 12 (incompetent performance).
The police union filed a grievance, and as this was proceeding through the three-step process under the Collective Bargaining Agreement, Brett Marrs went to court on the traffic citation. He had a bench trial before a judge, where both he and the bicyclist testified. The evidence showed that the bicyclist had failed to stop at the intersection, and jumped off the bike moments before it struck the cruiser. The judge found him not guilty of “improper starting.”
The grievance then went to an arbitration hearing on September 26, 2008. The arbitrator heard the evidence, and issued a written opinion, finding that the PD had failed to prove that Brett Marrs was terminated for “just cause.” The arbitrator referenced the trial judge’s acquittal of Marrs, and held that the PD failed to prove by “clear and convincing evidence” that Officer Marrs had violated Standards of Conduct.
The City of Piqua appealed to Court of Common Pleas, arguing that the arbitrator exceeded his authority under the CBA by requiring proof by “clear and convincing evidence” instead of the lower standard of “preponderance of the evidence.” The Common Pleas judge agreed with the city, and ordered Officer Marrs to remain terminated. The union filed an appeal to the Court of Appeals.
The Court of Appeals reversed the Common Pleas judge, and held that Officer Marrs should be reinstated even if the arbitrator used the incorrect standard of “clear and convincing evidence.” The Court wrote, “It is because arbitration is a creature of private contract that courts must ignore errors of fact or law.” The Collective Bargaining Agreement is silent on this issue of burden of proof.
The PD argues that because the CBA is silent on this issue, the arbitrator should have followed the “preponderance of evidence” standard commonly used in Ohio in labor and employment disputes before administrative agencies, and in most civil law suits in Ohio.
The Court of Appeals disagreed:
“The Ohio Supreme Court says that the arbitrator has the inherent power to decide the question of proof: in determining whether ‘just cause’ exists for discipline, and ‘[i]n the absence of contract language expressly prohibiting the exercise of such power, the arbitrator, by virtue of his authority and duty to fairly and finally settle and adjust (decide the dispute before him, has the inherent power to determine the sufficiency of the cause and the reasonableness of the penalty imposed..’” [Citations omitted.]
Legal Lessons Learned: Fire Departments, as well as Police Departments, should consider negotiating language in their Collective Bargaining Agreement on the burden of proof to be used by an arbitrator.
Article 17-5
OHIO: PROMOTION - TRIAL COURT IMPROPERLY ORDERED PROMOTION OF “ACTING” POLICE SERGEANT TO PERMANENT POSITION - UNDER CBA THE ARBITRATOR HAD ALREADY RULED THAT THE CITY MUST APPOINT “ACTING” OFFICERS TO FILL VACANCIES, BUT THESE WERE ONLY TEMPORARY POSITIONS - ARBITRATOR’S RULING IS FINAL UNLESS EVIDENCE OF FRAUD
On May 15, 2009, in Joseph C. DiPietrantonio v. City of Norwood, OHIO et al., 2009 Ohio 2260, 2009 Ohio App. LEXIS 1893 (Ohio Court of Appeals for the 1st District, Hamilton County) the court held (3 to 0) that the trial judge did not have subject-matter jurisdiction over the lawsuit filed by Officer DiPietrantonio seeking a promotion to Sergeant based on his time as an “acting Sergeant” and therefore the trial judge’s order of promotion is reversed.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 17-4
OH – ARBITRATION – FIREFIGHTER INJURED TRAINING - PLACED ON INVOLUNTARY DISABILITY SEPARATION FROM FIRE DEPARTMENT – COURT WILL NOT OVERTURN ARBITRATOR’S DECISION
On April 25, 2007, in Denise Goble v. Brunswick, 142 Ohio Misc.2d 137, 2007-Ohio-4125, a trial judge on the Court of Common Pleas of Medina County dismissed the appeal by Denise Goble, for firefighter / paramedic with the City of Brunswick Fire Department. In June, 2004 she was injured on duty while receiving training on the “Jaws of Life.” She was placed on sick leave, and then on disability leave.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 17-3
OHIO – FMLA - PUBLIC EMPLOYEE CAN SUE UNDER FMLA EVEN IF LOST ARBITRATION
On April 30, 2007, in Miller v. Pond, 171 Ohio App.3d 347, 2007-Ohio-2084, the Ohio Court of Appeals for Stark County, held that former county employee can sue the Stark County Department of Job and Family Services for alleged breach of Family Medical Leave Act, even though she filed a union grievance and an arbitrator ruled against her.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 17-2
OHIO - CITY AGREED IN COLLECTIVE BARGAING AGREEMENT TO FOUR FIEFIGHTERS ON ENGINES / LADDERS - COURT UPHOLDS ARBITRATOR DECISION THAT CITY CANNOT REDUCE TO THREE FIREFIGHTERS
On March 23, 2007, in International Association of Firefighters, Local No. 136 v. City of Dayton, 2007 WL 866999 (Ohio App. 2 Dist), 2007 – Ohio – 1337, the Ohio Court of Appeals for Montgomery County upheld an arbitrator’s decision on a union grievance, requiring the city to keep four FF on each engine / ladder.
[Full article is in Larry Bennett's new book, "Ohio Fire & EMS Law – Officer Development" (7/2009); see details on placing tax deductible order at www.uc.edu/cas/firescience.]
Article 17-1
LOUISANA – OFF-DUTY CONDUCT – CAPTAIN’S DEMOTION FOR OFF-COLOR COMMENTS TO CASINO EMPLOYEE IS REVERSED – HIS CONDUCT DID NOT IMPAIR THE EFFICIENCY OF THE FIRE DEPARTMENT
On May 31, 2006 in Henry Beba v. New Orleans Department of Fire, the Court of Appeals of Louisiana, 933 So.2d 871, 2006 La. App. LEXIS 1457, the court affirmed the city’s Civil Service Commission’s order to reverse the demotion of Henry Beba from captain to firefighter, since the off-duty incident at Harrah’s Casino involving a slot attendant did not impair the efficiency of the fire department.
BACKGROUND
On July 30, 2004, Captain Beba won a $2,000 jackpot as he was playing video poker, while off-duty and in civilian clothes, at Harrah’s Casino. Ms. Kay Ximinez was the slot attendant who handled the pay-off. She asked Beba, who appeared intoxicated to her, if he needed anything else. He allegedly responded, “You look like you have a big mouth. I have a big ….you can suck on.”
She walked away, feeling embarrassed and humiliated, and reported the comment to her supervisor. She later called the New Orleans Fire Department, and was advised to put her complaint in writing. The August 14, 2004 complaint was investigated, and internal charges filed against Captain Beba. He denied making inappropriate remarks, but after a “peer review” hearing, the Superintendent demoted Beba to firefighter for conduct impairing the efficiency of the fire department.
Beba is a classified City Civil Service employee, and he appealed his demotion to the Civil Service Commission. The Commission’s hearing examiner heard the testimony from numerous officers who testified in support of Beba’s excellent work perforce, confirmed by outstanding written performance evaluations in 2001 and 2004. The Superintendent testified and admitted that the alleged incident had not been made public. The hearing officer concluded that the Fire Department had failed to show that the incident impaired the efficient operation of the department. The Civil Service Commission agreed, and voted to reinstate Beba to captain. The city then filed this appeal to the Court of Appeals.
The Court of Appeals agreed with the Civil Service Commission’s decision, “While Captain Beba’s comments were rude, he did not commit a crime. Further, he was off duty and his actions did not involve fighting fires or supervising other firefighters. Additionally, there was no notoriety concerning the incident. Superintendent Parent admitted the matter was not made public. In fact, Captain Beba is still welcomed at the casino as a patron.”
The court concluded by comparing this case to Jones v. New Orleans, 2000-1047 (La. App. 4 Cir. 3/14/01), 785 So.2d 866, who “killed a pedestrian while driving intoxicated, left the scene, went home to change clothes and then reported for work at the fire district. Jones eventually was convicted of negligent homicide. In the present case, Beba has not committed a criminal act.”
Legal Lessons Learned: For fire departments, it is often difficult to sustain a demotion or termination for off-duty conduct unless it has clearly put the department in a bad light; for officers and firefighters, there is an obvious message about abuse of alcohol.
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