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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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Without Agreement By The Parties, Arbitrator May Have No Right To ‘Retain Jurisdiction’ Over A Case

A common feature of grievance arbitrations is that, after issuing an award, an arbitrator will retain jurisdiction over the case to resolve disputes about the remedy. What is not always appreciated, however, is that depending upon how the underlying collective bargaining agreement is written, an arbitrator may have no inherent right to retain jurisdiction, but rather can only do so if the parties agree to it. A case recently…

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‘Public Policy Exception’ To Arbitration Finality Alive And Well In Illinois

The most commonly-litigated exception to the principle that arbitration decisions are final and binding is known as the “public policy” exception. In general, the public policy exception only arises when a party clearly shows enforcement of the contract, as interpreted by the arbitrator. In a case involving Decatur, Illinois Police Officer Jeremy Welker, the Illinois Court of Appeals gave a broad reading to the public policy exception. Welker was…

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Corrections Officers Required To Arbitrate FLSA Claim

Corrections officers working for Butler County, Pennsylvania are covered by a collective bargaining agreement between the County and District Council 84 of the American Federation of State, County and Municipal Employees. The grievance procedure of the contract calls for the arbitration of “all disputes relating to the application or interpretation of the CBA and/or any dispute concerning the wages, hours, and working conditions of employees covered by this CBA….

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Arguments On The Merits Are For An Arbitrator, Not A Court

Pedro Sarmiento is a 25-year employee of the Laredo, Texas Police Department. When the Police Chief refused to fill open vacancies in the rank of captain, Sarmiento filed a grievance under the collective bargaining agreement between the City and the Laredo Police Officers Association. An arbitrator ruled in favor of Sarmiento, finding that the City had violated the collective bargaining agreement by failing to promote Sarmiento to captain. The…

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City Must Arbitrate Grievance Over Retirement Benefits

The City of Portland, Oregon has had a pension fund for police and fire employees for many years. In 2006, following public criticism of the Fund and its board, the City’s voters approved a ballot measure that, among other things, would restructure the Fund’s board and require new employees to become members of the statewide PERS system. After the election, the new Fund board determined that the Fund’s administrator…

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Changes In Staffing Rule Subject To Arbitration

Beginning in 1999, the Chief of Police of the Village of Horseheads, New York issued a series of general orders setting forth various rules and regulations relative to departmental operating procedures and policies. The rules included General Order A–13.1, which required that a minimum of two officers be assigned to patrol duty for each shift. In 2011, a new chief reissued General Order A–13.1, reducing the minimum staffing requirement…

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Arbitrator Rejects Proposal To Remove Lieutenants From Bargaining Unit

Baltimore County, Maryland and Lodge 4 of the Fraternal Order of Police (FOP) bargain under a local collective bargaining code. One provision of the code defines the rand-and-file law enforcement collective bargaining unit as including lieutenants. Notwithstanding the code provision, the County made a bargaining proposal to the FOP to remove lieutenants from the bargaining unit. When the FOP refused to agree, the matter ended up in arbitration. For…

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Firefighter Union Did Not Engage In Unauthorized Practice Of Law

The Town of Little Compton, Rhode Island and the Little Compton Firefighters Local 3957 are parties to a collective bargaining agreement. In the CBA, the parties agreed to submit all grievances to arbitration rather than resort to the courts. On February 11, 2009, the Union filed two grievances against the Town, alleging that the Town had violated the CBA by failing to maintain certain minimum staffing levels and by…

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