Arbitration Matters

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Another case rejecting termination of an officer because of prosecutor’s unsupported decision not to use them as a witness

June 7, 2020

A recent post (State Attorney’s refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer) addressed the issue of a City’s termination of a police officer after the prosecuting attorney’s office announced it would not use the officer as a witness in any proceeding. In a case raising a similar issue, the Commonwealth Court of Pennsylvania has affirmed a decision refusing to vacate an arbitrator’s award that reinstated a police officer…

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State Attorney’s refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer

By John H Curley

May 10, 2020

Grievant began his employment with the Marco Island, FL Police Department in October 2006. He was hired 18 months after having been terminated by the Collier County Sheriff’s Office after it was claimed he had given misleading testimony during an investigation.In November 2010 grievant was dispatched to a DUI. He testified in connection with that case at an administrative hearing. In February 2011 the presiding judge at that proceeding received a report of an allegation…

Arbitration Matters

Court rejects Nurses Association request for reverse Boys Market injunction requiring hospital to provide ppe and other Covid related safety measures

By John H Curley

May 3, 2020

The District Court for the Southern District of New York rejected the request of the New York State Nurses Association for a reverse Boys Market injunction seeking to compel Montefiore Medical Center to take certain steps to mitigate the risk that nurses might contract Covid-19 while the Union’s grievance was pending. The New York State Nurses Association v. Montefiore Medical Center.The Union sought, inter alia, to have the Medical Center provide PPE, space to…

Arbitration Matters

CA2: Reinstatement without back pay for "first time" sexual harasser not contrary to public policy

By John H Curley

April 19, 2020

In a Summary Order, the Second Circuit has affirmed the decision of the District Court (here) refusing to vacate an Award of Arbitrator Carmelo Gianino. Arbitrator Gianino had ordered the reinstatement, without backpay, of grievant, a security guard, who had been dismissed “for creating a hostile work environment when he made sexualized comments about a female staff member’s wardrobe and appearance.” Barnard College v. Transport Workers Union of America, AFL-CIO Local 264.Grievant,…

Arbitration Matters

Does an award of "make whole" relief, without more, imply an offset of interim earnings?

By John H Curley

April 12, 2020

That was the question presented to the District Court in United Electrical, Radio & Machine Workers of America and Local 506 v. General Electric Company.GE dismissed an employee for unacceptable attendance. That action was grieved and ultimately submitted to arbitration. The parties stipulated the issue as “Was the discharge of [grievant] for just cause? If not, what should be the remedy?” Arbitrator Christopher Miles issued an award finding the termination to have been made…

Arbitration Matters

Two recent cases on challenges to an arbitrator’s supplemental award – AAA Rule 40, functus officio, and punitive damages

By John H Curley

April 5, 2020

In Verizon Pennsylvania LLC v. Communications Workers of America, Local 1300, the District Court for the Eastern District of Pennsylvania vacated the “Supplemental Award on the Remedy” of Arbitrator Barbara Zausner. Arbitrator Zausner, chairing a three person panel, had granted a grievance challenging the Company’s implementation of a program to have certain set top boxes related to its FIOS TV service delivered to customers by common carrier. Previously the boxes were either carried to the…

Arbitration Matters

District Court finds Arbitrator exceeded authority by awarding attorney’s fees to Union as a remedy for Employer’s “frivolous” position

By John H Curley

March 29, 2020

The Award of Arbitrator Cynthia Stanley substantially adopted the Union’s calculation, awarding a little more than $260,000.00 (which included interest on the backpay). (here) She also ordered the Company to pay the Union’s attorney’s fees of $2,560.00 for the Supplemental Briefing period on back pay, finding the Company’s position on the back pay issue “frivolous and in bad faith.” (here) The District Court for the Northern District of Indiana has recently…

Arbitration Matters

Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor’s placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination

By John H Curley

March 22, 2020

After a thorough review of the facts, Arbitrator Joseph Daly concludes that Eden Prairie police officer Travis Serafin did not lie about his handling of an application for a search warrant, and did not intend to mislead the court when he testified. Law Enforcement Services, Inc., Brooklyn Center, Minnesota [Travis Serafin] And City of Eden Prairie, Minnesota. Those allegations were the basis for the County Attorney’s office designation of the officer as a Brady officer…

Arbitration Matters

Recent decisions: Invocation of spousal privilege is not a violation of the duty to cooperate, off duty misconduct, progressive discipline, and the effect of the absence of an explicit just cause provision in the cba.

By John H Curley

February 6, 2020

Officer’s invocation of spousal privilege is not a failure to cooperate, termination overturned Arbitrator Russel Bergstedt sustained a grievance filed on behalf of a Tulsa police officer dismissed for failure to answer a question during an Internal Affairs investigation. City of Tulsa and FOP Lodge 93. The officer’s husband (also a Tulsa police officer) had been alleged to have shot and killed their daughter’s boyfriend. While grievant was initially charged with being an accessory…

Arbitration Matters

Disparate treatment not cured by subsequent modification of earlier discipline, and modification barred by principle of double jeopardy

By John H Curley

January 15, 2020

Two recent arbitration awards involving Cincinnati police officers highlight the issues of double jeopardy and equality of treatment, and the impact of those principles on a Department’s efforts to discipline officers. On September 26, 2018 Officer Donte Hill was recorded on a body cam using a racial slur while dealing with two individuals engaged in a physical altercation. Because the incident included the use of force (a taser) the body cam footage was reviewed by…

Arbitration Matters

Blog Authors

Another case rejecting termination of an officer because of prosecutor’s unsupported decision not to use them as a witness

State Attorney’s refusal to use police offer because of Brady concerns found insufficient, without more, to support termination of officer

Court rejects Nurses Association request for reverse Boys Market injunction requiring hospital to provide ppe and other Covid related safety measures

CA2: Reinstatement without back pay for "first time" sexual harasser not contrary to public policy

Does an award of "make whole" relief, without more, imply an offset of interim earnings?

Two recent cases on challenges to an arbitrator’s supplemental award – AAA Rule 40, functus officio, and punitive damages

District Court finds Arbitrator exceeded authority by awarding attorney’s fees to Union as a remedy for Employer’s “frivolous” position

Arbitrator finds police officer did not intentionally lie about warrant application, concludes prosecutor’s placement of officer on Brady list and declining to allow him to testify does not provide just cause for termination

Recent decisions: Invocation of spousal privilege is not a violation of the duty to cooperate, off duty misconduct, progressive discipline, and the effect of the absence of an explicit just cause provision in the cba.

Disparate treatment not cured by subsequent modification of earlier discipline, and modification barred by principle of double jeopardy

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