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E-Z Passes For Retirees Contractually Protected

The Port Authority of New York and New Jersey and the Port Authority Police Sergeants Benevolent Association (SBA) are parties to a collective bargaining agreement. When the Authority eliminated free electronic toll collection system (known as E-Z Pass) privileges for retirees, the SBA challenged the decision in arbitration. An arbitrator ruled in the Association’s favor, relying on a 1973 Port Authority “Administrative Instruction,” PAI 40–1.01, that provides that retired…

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Arbitrator’s Reinstatement Of Officer In Excessive Force Case Does Not Violate Public Policy

Officer Scott Oglesby worked for the Bloomington, Illinois Police Department and was a member of the Policemen’s Benevolent and Protective Association. In May 2011, the Department terminated Oglesby after sustaining an excessive force charge against him. The underlying incident occurred in December 2010, when Oglesby responded to an incident at a local school. When Oglesby arrived at the school, he reported to the principal’s office and was directed to…

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Police Standards Board Not Bound By Arbitrator’s Decision

Lance Parcell was an officer in the Airport Police and Fire Department of the Alaska Department of Transportation. On May 5, 2006, while on a training assignment, Parcell and two other training officers went to a bar in Sitka and Parcell became extremely intoxicated. While at the bar, Parcell slid toward a female officer on a couch and made inappropriate sexual remarks, telling her “that he wanted to make…

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Arbitrator Has No Authority To Rewrite Contract In The Name Of Fairness

The collective bargaining agreement between the City of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1 has a secondary employment clause providing that “police officers engaged in secondary employment will receive the rate of pay for such work as agreed upon by and between the City and the Secondary Employer.” The “agreed upon rate of pay” for secondary employment is the overtime rate for a…

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Arbitrator Has No Authority To Rewrite Contract In The Name Of Fairness

The collective bargaining agreement between the City of Pittsburgh and the Fraternal Order of Police Fort Pitt Lodge No. 1 has a secondary employment clause providing that “police officers engaged in secondary employment will receive the rate of pay for such work as agreed upon by and between the City and the Secondary Employer.” The “agreed upon rate of pay” for secondary employment is the overtime rate for a…

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Union, Not Firefighter, Has Right To Challenge Discipline In Arbitration

John Woods was a fire lieutenant for the Berwyn, Illinois Fire Department. A series of disputes arose between Woods and other members of the Department, and eventually the Department terminated Woods. Local 506 of the International Association of Fire Fighters voted not to challenge the termination in arbitration. The collective bargaining agreement between the Department and Local 506 allows employees the right to have disciplinary disputes not referred to…

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Union’s Lawyer Disqualified From Arbitration Panel

Connecticut is one of several states that break public safety negotiations impasses with a “tri-partite” arbitration panel. Typically, the employer and union each appoint one member of the panel, and those two appointees select the third member of the panel. The “neutral” panel member is typically an experienced arbitrator, and the panel’s decision is arrived upon by majority vote. For many years, there has been a practice of appointing…

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Firefighter Layoffs Deemed Not Arbitrable

When the City of Reno, Nevada lost federal grant money in 2014, the City announced it was laying off 32 firefighters whose jobs were funded by the grants. Local 731 of the International Association of Fire Fighters, which represents the City’s rank-and-file firefighters, filed a grievance challenging the layoffs. The essence of Local 731’s grievance was that the City had sufficient discretionary funds to keep all firefighters employed. Local…

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Arbitrator’s Opinion Does Not Violate State Health Insurance Statute

When the Town of Athol, Massachusetts unilaterally increased copayment amounts for medical services, Local 1751 of the International Association of Fire Fighters challenged the decision through the filing of a grievance. An arbitrator concluded that changes in copayments were a mandatory subject of collective bargaining and that the Town violated the contract by making the changes unilaterally. As a remedy, the arbitration award required the Town, among other things,…

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Arbitrator Can Set Clear And Convincing Burden Of Proof In Disciplinary Cases

When Officer Kevin Hammond was terminated by the Village of Posen, Illinois Police Department, his labor organization, the Illinois FOP Labor Council, challenged the termination in arbitration. An arbitrator overturned the termination, finding that the Village had not presented “clear and convincing evidence” that termination was warranted. Discussing the proper quantum of proof, the Arbitrator noted a “widespread recognition” that arbitration of just cause vests the arbitrator with discretion…

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Participation In Arbitration Hearing Forecloses Later Challenge To Decision

Stacy Keylon worked as a dispatcher for the City of Dos Palos, California Police Department. When disciplinary charges were lodged against her for bringing a loaded firearm to work, Keylon participated in a pre-termination hearing. However, because Keylon was denied the opportunity to provide mitigating facts, this hearing did not comply with the due process requirements outlined by the California Supreme Court in a case known as Skelly v….

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Firefighters’ Past Practice Grievance Subject To Arbitration

The collective bargaining agreement between the City of Orange, Texas and the Orange Association of Firefighters contains a grievance procedure with fairly standard wording. The contract defines as a grievance: “Any controversy between the City and the Union or any employee concerning the interpretation, enforcement, or application of any provision of this Agreement, or concerning any of the terms or conditions of employment contained in this Agreement.” When the…

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California Bill Of Rights Claims Can Be Arbitrated

In June 2005, the City of Santa Rosa, California hired James Mitchel as a police captain. Beginning in 2007, various subordinate officers filed gender discrimination complaints against Mitchel and Police Chief Edwin Flint. In February 2008, the City informed Mitchel it had initiated an internal affairs investigation. Mitchel and the complainants were interviewed and an investigative report was prepared in March 2008, with a copy given to Mitchel. In…

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Arbitration And Civil Rights Litigation

Kyle Bermingham was an officer with the City of Clermont, Florida Police Department. Bermingham was terminated after he complained to the City and the Florida Department of Law Enforcement about the Police Chief’s allegedly unlawful police practices. Bermingham filed a grievance with the City, alleging that his termination violated the terms of the collective bargaining agreement. After the City Manager upheld the termination on initial review, Bermingham brought his…

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Connecticut Court Adopts Strict Rule For Harassment Arbitrations

Most state courts in the country follow the approach of the Supreme Court in Eastern Associated Coal Corp. v. United Mine Workers of America, District 17, 531 U.S. 57 (2000), and will uphold an arbitrator’s opinion reinstating a terminated employee unless there is a well-defined public policy expressed through state law that prohibits reinstatement. Connecticut’s courts take a different approach, and look much more to whether the employee’s conduct…

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The ‘Brady Rule’ And Arbitration

A case involving the Kansas City Police Department has explored the relationship between the Brady/Giglio rule and the “just cause” provisions of a collective bargaining agreement. The case stemmed from the termination of Officer Jeffrey Gardner. Gardner was assigned to the SCORE Team, the Department’s equivalent of a SWAT Team. The Wyandotte County District Attorney conducted an investigation into whether members of the SCORE Team had stolen items from…

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Arbitration Decision Does Not Preclude Discrimination Lawsuit

When Cecilia Baldazo was fired from her job as a deputy sheriff for Elko County, Nevada, she filed a federal court lawsuit alleging that she was the victim of discrimination on the basis of her gender and her sexual orientation. The State raised the defense that since Baldazo had challenged her discharge in arbitration, and had lost, the arbitration decision should be res judicata and require the dismissal of…

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The Remedies In Arbitration

In a decision out of San Joaquin County, California, Arbitrator Bonnie Bogue dealt with a wide range of issues concerning the remedies available in arbitration when an employee has been wrongfully discharged. The Arbitrator had already held that the County had no just cause to terminate the employee; what gave rise to a supplemental decision was a disagreement between the employer and the labor organization over the appropriate remedies….

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Arbitrator’s Opinion On Range Qualification ‘Passably Plausible’

The Rhode Island Brotherhood of Correctional Officers represents corrections officers employed by the State of Rhode Island. The Brotherhood’s collective bargaining agreement contains a clause, known as Section 31.1, which requires the State to “offer a minimum of forty (40) hours per year of training to all uniformed Correctional Officers.” Section 31.2 of the CBA creates a training committee. Composed of two representatives of the DOC and two representatives…

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Binding Arbitration Requires Manager To Include Costs Of Award In Proposed Budget

Law enforcement officers in Montgomery County, Maryland are represented by Lodge 35 of the Fraternal Order of Police. The County negotiates under a local collective bargaining ordinance that contains “final offer” binding interest arbitration as the last step in the bargaining process. In 2011, an arbitrator awarded Lodge 35’s final offer in the negotiations. A provision in the County’s bargaining law requires that “a ratified agreement shall be binding…

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Los Angeles Required To Arbitrate Grievances Challenging Furloughs

After declaring a fiscal emergency, the City of Los Angeles adopted a mandatory furlough program for its civilian employees. Many employees represented by unions filed grievances against the City, arguing that the furloughs violated memoranda of understanding (California’s equivalent of a collective bargaining agreement) governing the terms and conditions of their employment. When their grievances were denied, these employees requested arbitration, and when the City refused to arbitrate, their…

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Grievance Challenging Reduction Of Retiree Health Benefits Not Arbitrable

Public safety employers seeking financial relief have more than occasionally sought to reduce retiree health care benefits. Those reductions have in turn resulted in grievances, which in turn have prompted responses by employers that since retirees are not covered by the collective bargaining agreement, the grievances are not arbitrable. Most courts have required employers to arbitrate grievances over changes in retiree health care benefits. The usual reasoning is that…

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Code Provision Limiting Binding Arbitration Trumped By County’s Charter

In 2002, the voters of Anne Arundel County, Maryland adopted an amendment to the County Charter calling for the resolution by binding arbitration of collective bargaining impasses with the County’s law enforcement employees and firefighters. In 2003, the County Council adopted an ordinance implementing that Charter provision. However, in 2011, the County Council amended the 2003 ordinance to provide that binding arbitration did not require the Council “to appropriate…

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Duty To Arbitrate Can Survive Expiration Of Contract

A collective bargaining agreement between Baltimore County and Baltimore County Fraternal Order of Police (FOP) contained an arbitration clause and a retiree health insurance provision. The FOP believed the provision locked in place the health insurance subsidy, as it existed at the time of an officer’s retirement. After the agreement expired and the County decreased the health insurance subsidy, the FOP initiated arbitration. The County protested, arguing that it…

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The Limitations Of The ‘Public Policy’ Exception To Arbitration Awards

Most collective bargaining agreements contain grievance procedures that end with arbitration. In the parlance of many contracts, arbitration is “final and binding,” meaning that a party cannot appeal an arbitrator’s decision even if the arbitrator made legal or factual mistakes. There is a limited exception to the finality of arbitration awards, known as the “public policy” exception. Under the exception, an arbitrator’s opinion will be overturned if the decision…

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