‘Gross Error’ Required To Reverse Arbitrator’s Decision In Alaska

The termination of a four-year officer of the Airport Police and Fire Department of the Alaska Department of Transportation gave the Alaska Supreme Court the opportunity to revisit the standard used to evaluate arbitrators’ opinions. The termination was based on two events that occurred in May 2006 while the officer was working at the Alaska Law Enforcement Academy in Sitka, Alaska, and on the officer’s conduct during the subsequent investigation.

On May 5, 2006, the officer and two other training officers went to a bar in Sitka, and the officer became extremely intoxicated. While at the bar, the officer slid toward a female officer on a couch and made inappropriate sexual remarks, telling her “that he wanted to make her come, that he could make her scream, and that he could push her buttons.” The female officer told him to stop, but he repeated the comments several times. Because the officer was too intoxicated to walk home that night, another officer drove him home. When they returned to the Academy, the officer vomited outside and then, after the hallways were cleared of recruits, he was helped into an Academy building to a room where he could sleep. The officer apologized to the female officer in person the following day and by email several days later. The officer stated during the internal investigation that he did not remember making these inappropriate remarks to the female officer.

On the evening of May 17, 2006, the officer stared at another female officer while they were watching television and later sent her unwelcome text messages in which he invited her to “go on a beer run,” “go out and have fun,” and join him in the room where training officers are allowed to sleep to “talk to him if she wanted.” She told him to stop sending the messages, but he continued to do so. The following morning, the officer sent the female officer an email calling her his “sexy new friend,” telling her she had “a great ass” and “very nice tits,” and stating that he wanted to see her nipple rings. The female officer wrote an email expressing her anger with his behavior, and the officer subsequently sent her an email apology. The officer testified at arbitration that he was up all night drinking prior to sending the email, a fact supported by the female officer’s statement during the investigation that she smelled alcohol on the officer when she saw him that morning.

An internal affairs investigator later concluded that the officer had been untruthful on at least eight occasions during his interview. During a meeting with the Chief, the officer admitted that he had not been honest, and said that his dishonesty in his interview during the investigation was limited to downplaying the extent of his drinking.

When the Department terminated the officer, his labor organization, the Public Safety Employees Association, challenged the decision in arbitration. An arbitrator easily found that the evidence established that the officer had acted inappropriately, calling the officer’s behavior “totally contrary to his professional responsibility,” “sexually offensive,” and “as far over the line as one could imagine.”

The Arbitrator next found that the Department could not establish that the officer’s conduct constituted either of the two recognized bases for stating a claim of sexual harassment against an employer – quid pro quo harassment and hostile work environment harassment.

Lastly, the Arbitrator found that although the Department did not establish that the officer had lied, it did prove that he “was evasive, misleading and not forthcoming” in the investigatory process.

The Arbitrator identified a number of mitigating factors in finding the penalty to be excessive: The officer had worked for the Department for four years with no previous disciplinary incidents; employees who had committed similar infractions in the past, including being less than truthful in an internal investigation and engaging in “crude behavior at the bar,” had not received as harsh a penalty; something less than discharge might have provided the officer an opportunity to correct his behavior, and based on the officer’s attitude at the arbitration hearing, the discipline already had a substantial corrective effect; and the officer’s conduct occurred off duty – in one instance off-site – and there was no evidence that the incidents had an effect on the Academy’s reputation. The Arbitrator decided to order the Department to reinstate the officer to his position, but “only by the slimmest margin,” and concluded that the officer was not entitled to any back pay.

The Alaska Supreme Court upheld the Arbitrator’s opinion. The Court cited the fact that “the common law and Alaska statutes evince a strong public policy in favor of arbitration. In order to encourage parties to pursue arbitration, Alaska courts have a policy of minimizing their interference with arbitration decisions. We give great deference to an arbitrator’s decision, including findings of both fact and law. We will only vacate an arbitration award arising out of a collective bargaining agreement where it is the result of gross error – those mistakes that are both obvious and significant.”

The Court found no such “gross error” in the Arbitrator’s decision:

“While we may disagree with the Arbitrator’s ruling, this is insufficient to justify reversing the decision given our deferential standard of review. In his opinion, the Arbitrator found the officer to have engaged in harassing conduct and to have been evasive and misleading during the investigation, but he also found there to be a number of mitigating factors that favored a lesser penalty. If we were reviewing this case in the first instance, or under a less deferential standard, we likely would not have reached this conclusion. But our standard for viewing an arbitrator’s decision is very deferential: We review for gross error. And it was not gross error for the Arbitrator to conclude that the Department did not have just cause to terminate the officer and that a lesser but still severe penalty, a 16-month suspension without pay, was sufficient discipline.”

State v. Public Safety Employees Ass’n, 2010 WL 2541135 (Alaska 2010).

This article appears in the October 2010 issue