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In Spite Of Brady Rule, Washington Supreme Court Reinstates Arbitrator’s Opinion Overturning Deputy’s Discharge For Untruthfulness

Brian LaFrance worked as a deputy for the Kitsap County, Washington Sheriff's Department for 14 years, during which he was disciplined several times. Beginning in May 2000, LaFrance began to behave unusually. He had been assigned to a child pornography task force, and he became “obsessive” and “fixated” on this work and on “protecting the children.” Despite repeated warnings and reprimands, LaFrance continued to work outside his regular shift…

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Back Pay Includes Missed Overtime

An often-argued issue in disciplinary arbitrations is whether an award of back pay can properly include an award of missed overtime. One of the more respected arbitrators in the country, Stanley Sergent, recently held that back pay awards could include compensation for missed overtime opportunities. The case came to Arbitrator Sergent via an unusual route. The City of Lake Worth, Florida, terminated a sergeant. After a hearing, Arbitrator Charles…

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‘Statement Of The Issue’ In Arbitration Can Be Significant

Most arbitration hearings begin with the advocates attempting to frame the “statement of the issue” for the Arbitrator. To those without much arbitration experience, the process may seem to be an arcane one. A recent Connecticut case, however, illustrates the significance of the “statement of the issue” process. The case involved the demotion of Derek Austin, a lieutenant with the State of Connecticut Department of Correction, from the position…

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Arbitrator Not Required To Take Into Consideration Post-Hearing Economic Evidence

Where the negotiations process ends in arbitration, an employer or labor union seeking to challenge an arbitrator’s opinion has an extremely heavy burden of proof. Though the standard varies little from state to state – the arbitrator’s decision usually must be shown to be without any basis in fact or the product of fraud – some states, including New Jersey, require an arbitrator to specifically consider each of the…

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Error Of Law Not Sufficient To Overturn Arbitrator’s Decision

Daryl Chilimidos was a deputy sheriff for the Contra Costa County Sheriff’s Department. While on patrol duty, Chilimidos arrested a female pedestrian and performed a cursory search before he transported her to a detention facility. When they got there, another deputy searched and booked the arrestee, and found a small plastic bag that contained methamphetamine in the back pocket of her pants. Chilimidos prepared an initial report and a…

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‘Union Leave’ Provision In Arbitrator’s Award Not Enforceable

When the Pennsylvania State Troopers Association and the Commonwealth of Pennsylvania were unable to agree upon a collective bargaining agreement, their disputes were resolved by an arbitrator. One of the provisions in the Arbitrator’s award was that Union officers should be released from duty and “shall be paid by the Commonwealth at the amount designated by the Association’s Board of Directors, not to exceed the rate of the highest-ranking…

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Timeliness Defects Must Be Raised Early In Grievance Procedure

The Madison Township, Michigan Fire Fighters Union filed a grievance challenging the Fire Department’s decision to hire a temporary worker to replace a bargaining unit paramedic who was using extended sick leave. The Township contended that the grievance was not arbitrable because it had not been filed in a timely manner. An arbitrator rejected the Township’s “timeliness” argument. Citing well-established arbitration rules, the Arbitrator ruled that employers must raise…

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Testimony in ‘Court’ Can Include Appearance Before Commission

A corrections officer working for the Plymouth County Sheriff’s Department in Massachusetts was subpoenaed to appear before the Massachusetts Commission Against Discrimination. The Commission was hearing a discrimination complaint filed by a fellow corrections officer against the Department. When the Department refused to compensate the officer for his appearance at the Commission, his labor organization challenged the employer’s decision in arbitration. The Arbitrator found that the contract’s use of…

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Court Defers To Arbitrator’s Decision On Pay For Travel

On March 1, 2005, the Chief of Police of the New Jersey Transit Corporation issued orders temporarily assigning two police officers to each other’s regular assignments for a period of 28 calendar days. One officer was transferred from his position at Hoboken and assigned to the other officer’s position in Newark, and vice versa. The officers’ labor organization, Local 304 of the Patrolman’s Benevolent Association (PBA), filed a grievance…

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Officer Entitled To Waive Health Insurance

A police officer for the Township of Upper Saucon, Pennsylvania Police Department originally maintained one-person health insurance. When she married a fellow officer in 2007, she sought to take advantage of a provision in the Township’s contract with the Upper Saucon Township Police Association that allowed officers to waive health insurance in exchange for a $200 monthly payment. The Township denied the officer’s request for a waiver. The Association…

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City Has Right To Rescind Take-Home Car Program

The Fraternal Order of Police (FOP) represents a bargaining unit popularly referred to as “the Gold Unit” made up of lieutenants and majors in the City of Marion, Ohio Police Department. There are approximately 17 employees in the bargaining unit. Four are majors and 13 are lieutenants. In 2000, the Department decided to permit four majors and one lieutenant, all of whom were involved with investigative work, to utilize…

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Court Refuses To Overturn Arbitration Awards Favoring Firefighters

The City of North Olmstead, Ohio challenged two arbitration decisions rendered in favor of Local 1267 of the International Association of Fire Fighters. The first, referred to as the “Hayford Award,” found that the City had unlawfully changed call-in practices for overtime assignments, and required the City to rescind its change in past practice. The second, know as the “Klein Award,” required the City to follow the definition of…

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Supreme Court Changes Legal Landscape On Scope Of Arbitration

Since the Supreme Court’s 1974 decision in Alexander v. Gardner-Denver Co., it has been believed that a collective bargaining agreement could not force employees to waive the right to proceed in court in lawsuits under federal statutes. Though the following 35 years of Supreme Court decisions on arbitration increasingly gave broader scope to arbitration clauses, the Court had stopped short of allowing the compulsory arbitration of a statutory claim….

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Employer Required To Disclose Pre-Disciplinary Interviews And Identity Of Witnesses

In October 2004, Local 2898 of the International Association of Fire Fighters, which represents rank-and-file employees of the Seattle Fire Department filed a grievance on behalf of a bargaining unit member alleging that the employer imposed discipline without just cause. The grievance eventually proceeded to arbitration. Prior to the arbitration hearing, Local 2898 requested that the City provide it with full disclosure of the names of all individuals interviewed…

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Court Reinstates Sergeant’s Demotion

A clear example of a difference between appealing discipline through a civil service system and appealing discipline through arbitration can be found in a recent case involving Santa Cruz County, California. When discipline is appealed through arbitration, court review is extremely limited, and typically focusing only on whether the arbitrator exceeded his or her jurisdiction in issuing an opinion. It is extremely rare for an arbitrator’s disciplinary opinion to…

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Timeliness Objections Must Be Raised Early In Grievance Procedure

The Fire Department of the Town of Stoughton, Massachusetts contracted with a laundry service to wash not only various linens and towels used by firefighters, but also firefighters’ uniforms. After receiving a number of complaints from firefighters about the quality of the service, the Town determined that the contractor was not separating uniforms from the towels and linens before washing them, resulting in potential contamination. The Town terminated the…

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Retroactivity Language Applies To Grievance Procedure

Kitsap County, Washington and the Kitsap County Deputy Sheriff’s Guild have a history of not negotiating new contracts before an existing contract expires. The parties’ contract in effect between January 1, 2003 and December 31, 2005 was not negotiated until August 22, 2005. The 2006-2007 contract was not negotiated until July 24, 2006. During the period of time between the expiration of the previous collective bargaining agreement and when…

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Grievance Must Be Arbitrated If It Has ‘Reasonable Relationship’ To Contract

The Town of Cheektowaga, New York is party to a collective bargaining agreement with the Cheektowaga Police Club. The bargaining unit represented by the Club consists of officers below the rank of lieutenant. The Club filed a grievance challenging the Town’s decision that it promote one officer rather than another to the rank of lieutenant. The Club contended that the Town’s decision was impermissibly based on a non-successful candidate’s…

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Arbitrator, Not Courts, Decides Who Should Be Grievant

The Hartsdale, New York Fire District is party to a collective bargaining agreement with Local 1586 of the International Association of Fire Fighters. When Local 1586 attempted to process a grievance to arbitration, the District filed a lawsuit to permanently enjoin the arbitration. The District’s theory was that under the collective bargaining agreement, only individual employees and not the union could refer a grievance to arbitration. An appeals court…

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Arbitrator Allows Overlapping Court And Overtime Payments

In 2005, the Police Chief of the Brockton, Massachusetts Police Department issued an order prohibiting overlapping court and other overtime payments for the same time period. The Brockton Police Association challenged the Chief’s order in arbitration. An arbitrator upheld the grievance. The Arbitrator concluded that the contract language governing court overtime minimum payments and general overtime were clear and unambiguous, and allowed for overlapping payments. Because the Arbitrator concluded…

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Arbitrator Has Right To Be Wrong

Matthew Carver is a corrections officer with the Suffolk County, Massachusetts Sheriff’s Office. In 2002, Carver suffered a workers’ compensation injury to his right knee. Subsequently, the Sheriff’s Office began to treat Carver’s absences as “undocumented” under the terms of a “Managing Attendance Policy (MAP)” negotiated between the County and Carver’s labor organization, AFSCME Council 93. Under the MAP, if an employee has too many “undocumented” sick days in…

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Arbitrator Has No Ability To Apply State Statute

Pursuant to a collective bargaining agreement between the Sheriff of Suffolk County, Massachusetts and AFSCME Council 93, which represents the County’s corrections officers, Correction Officer Michael Doherty filed a grievance challenging the manner in which the Sheriff calculated Doherty’s seniority date. An arbitrator upheld Doherty’s grievance and ordered the Sheriff to upgrade his rank to sergeant, at the top-step level. The Sheriff brought a lawsuit to overturn the Arbitrator’s…

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