Timeliness, functus officio, mitigating circumstances, and use of force

By John H Curley on January 13, 2019

Arbitrator erred in determining timelines of a grievance

The Fifth Circuit has effectively vacated an award of Arbitrator Daniel Jennings (here), concluding that the Arbitrator’s reliance on the execution date of the contract rather than its ratification date triggered the start of the timeline for the filing of a grievance. Southwest Airlines Company v. Local 555, Transport Workers Union of America. TWU Local 555 sought to arbitrate Southwest’s use of non-union vendors to clean the interior of its aircraft. The cba called for a ten day period from the date of the union’s knowledge of the alleged violation for the filing of a grievance. The dispute in this case turned on whether that ten day period started on the ratification date or the execution date of the cba. The cba provided that the cba would become effective “when [it] is accepted by the Company and ratified by the membership.” The cba was ratified on February 19, 2016. It was actually signed on March 16, 2016. Rejecting the conclusion of the Arbitrator, the Court found that the contract became effective upon ratification, and since the grievance was not filed within 10 days of that occurrence it was untimely. It found the Arbitrator’s contrary conclusion in conflict with the plain language of the contract;

It was not an arguable construction of the CBA and instead amounted to the arbitrator’s own brand of industrial justice. The arbitrator’s interpretation failed to account for (1) the CBA’s title page that sets February 19, 2016 through February 18, 2021 as the “period” for the CBA; (2) Article 29’s express language that the CBA shall “remain in full force and effect as of the date of ratification through and including February 18, 2021”; (3) the CBA’s one-time bonus paid to employees working under the CBA as “of the Date of Ratification”; and (4) the parties’ conduct, including Southwest’s payment of the increased rates and bonuses set out in the CBA, starting after the CBA was ratified but before it was signed.

Functus officio precludes court’s consideration of Arbitrator’s third, fourth and fifth version of award.

The Court of Appeals of Ohio has affirmed a lower court decision vacating an award of Arbitrator Susan Grody Ruben. The award reinstated an employee of the Youngstown Developmental Center who had been dismissed for alleged abuse of a client at the facility. Office of Collective Bargaining v. Ohio Civil Service Employees Ass’n, Local 11. Grievant had ben accused of abuse when she allegedly either slapped the hand of the client or forcibly knocked something out of her hand. In an award dated May 28, 2015, the Arbitrator rejected the Union’s argument that she should use the definition of abuse found in the Ohio Code and used instead the definition of abuse found in the Department’s Standards of Conduct. Nevertheless she found that grievant had engaged in the conduct alleged and that “slapping or knocking” fell within that definition. The next morning, the Arbitrator sent a revised award, correcting a typo and several dropped sentences but making no substantive changes in the award. The Arbitrator issued a third award on May 30, 2015, finding that grievant’s conduct did not constitute abuse as that term is used in the cba but was contrary to the Department’s Standards of Conduct but still reduced the dismissal to a suspension “for the first offense of abuse.” Later that same day the Arbitrator issued another award, substantially the same but noting the suspension was for “for a first offense of Rules E-3 and E-5.” Finally the Arbitrator issued a fifth award on May 31, 2015 containing some additional discussion, and adopting the definition of abuse found in the Ohio Code (a position she had rejected in the first award). Applying that definition the Arbitrator found that grievant’s conduct did not constitute client abuse as that term is used in the cba.

The State Office of Collective Bargaining and the Department sought to vacate the award. The trial court first determined that the Arbitrator had no authority to make substantive changes to the original award. It then concluded that the Arbitrator had exceeded her authority in concluding that the Department did not have just cause to dismiss grievant after finding that she had committed client abuse.

The Union appealed, and the appellate court affirmed. It agreed with the lower Court that its review should be limited to the original award, noting:

The doctrine functus officio is not applicable, however, where the arbitrator does not attempt to change his opinion in a substantive way…. Accordingly, there are several exceptions to the doctrine, such as “(1) where the arbitrator can `correct a mistake which is apparent on the face of [the] award’; (2) where `the award does not adjudicate an issue which has been submitted, then as to [the] issue the arbitrator has not exhausted his function and it remains open to him for subsequent determination’; and (3) where `the award, although seemingly complete, leaves doubt whether the submission has been fully executed, an ambiguity arises which the arbitrator is entitled to clarify.'” …
None of the recognized exceptions apply in this case. Our review of the arbitrator’s original opinion and award shows that the arbitrator exhausted her function by fully adjudicating all submitted issues and by making a final award. The arbitrator’s original opinion and award makes all required factual findings, sets forth the applicable law, reaches the necessary legal conclusions, and makes an award that finally determines all pending matters. In our view, the arbitrator’s third, fourth, and fifth iterations of the opinion and award affected changes to the original opinion and award that can only be characterized as substantive in nature both factually and legally. This is the very circumstance that the doctrine of functus officio and Miller intended to prevent.

In light of the Arbitrator’s finding in the original award that grievant had committed client abuse, and the language of the cba that ” In cases involving termination, if the arbitrator finds that there has been an abuse of a patient or another in the care or custody of the State of Ohio, the arbitrator does not have authority to modify the termination of an employee committing such abuse….” the Court found the Arbitrator’s award “irreconcilable with the CBA.”

Arbitrator failed to consider mitigation circumstances in determining appropriateness of discipline, case remanded to the Arbitrator for reconsideration

The Court of Appeals for the Federal Circuit has remanded a dispute to the Arbitrator because the Arbitrator ignored certain evidence of mitigating circumstances. Grievant was an officer with the United States Park Police. Koester v. United States Park Police He was dismissed for allegedly consuming alcohol on duty and being impaired while on duty due to alcohol consumption. Arbitrator James Harkless issued an award upholding the dismissal.The Union appealed, asserting that the Arbitrator had failed to consider evidence of mitigation which had been presented at the hearing but which had not previously been presented to the Park Police. Agreeing with the Union, the Court noted:

In this case, the arbitrator abused his discretion when, during his independent assessment of the Douglas factors, he refused to consider evidence that he believed was never presented to the agency. He gave no weight to Mr. Koester’s ability to demonstrate improvement after completing the Employee Assistance Program, the impact of Hurricane Sandy, the unfriendly work environment, and the effect of Mr. Koester’s wife’s poor immigration interview because the Union did not refer to that evidence at the agency level in its response to the Park Police’s proposed removal. That rationale for disregarding evidence is clearly contrary to our decision in Norris. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 n.2 (2014) (indicating that taking an erroneous view of the law necessarily constitutes an abuse of discretion). And the arbitrator’s erroneous view of the law is not harmless. He gave no alternative explanation for discounting some of that evidence even if it were in the mix, and we therefore cannot say without impermissibly reweighing the evidence ourselves whether that new body of evidence would alter the arbitrator’s evaluation of the reasonableness of the agency’s removal penalty.

The Court remanded the dispute to the Arbitrator and directed him to independently assess the relevant Douglas factors “taking into accountable of then evidence presented, including purported new evidence, now of record”

Court refuses to overturn award reinstating police officer despite claim that award was contrary to public policy

The Minnesota District Court has denied a request to vacate as contrary to public policy an award (discussed here) that reinstated a police officer dismissed for alleged use of excessive force. City of Duluth v. Duluth Police Union, Local 807. The arbitrator found that the officer’s use of force was unreasonable, but that the penalty of termination was too severe.

While noting that the same issue is currently pending in the Minnesota Supreme Court (in a case discussed here), the District Court found that the current state of the law did not warrant vacating on public policy grounds the Arbitrator’s conclusion that the discipline was too stringent.