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Another case on zero tolerance, just cause, and a failed drug test

December 8, 2020

A recent post discussed a challenge to an arbitrator’s award where the Company claimed that the arbitrator ignored the violation of its zero tolerance policy for drug use and improperly reinstated an employee, albeit without back pay. Zero tolerance, a drug test and just cause. A similar issue is raised by a complaint filed by Colonial Wholesale Beverage Company seeking to vacate an award of Arbitrator Lawrence Holden. The dispute arose from the termination…

Arbitration Matters

Zero tolerance, a drug test and just cause

By John H Curley

December 1, 2020

The Eleventh Circuit reversed the decision of a District Court and upheld an arbitration award (here) reinstating an employee terminated pursuant to the Company’s Zero Tolerance policy following a positive drug test. Georgia-Pacific Consumer Operations LLC, v. United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952. The cba in issue provided: The Company will establish a “zero tolerance” random drug testing program for all Company employees…

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Back pay – Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

By John H Curley

November 15, 2020

The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. City ordered to rehire ‘proven racist’ cop; status uncertain The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator’s award on the merits as well as a subsequent award on back…

Arbitration Matters

Quick hits – Union dues, self defense, and clearing a grievant’s name

By John H Curley

November 1, 2020

Arbitrator rejects City’s claim the Janus supersedes dues deduction withdrawal window of cba Arbitrator William Heekin rejected the position of a School District that the Supreme Court’s decision in Janus effectively superseded a ten day “window” for withdrawal of union dues deduction authorization. Fairfield City School District Board of Education and OAPSE/AFSCME Local 4 AFL-CIO Local 205. Grievant had signed a membership application as well as a dues deduction authorization on August 12, 2018. That application, and…

Arbitration Matters

Arbitrator upholds termination of Sheriff’s Deputy for off duty use of force

By John H Curley

October 18, 2020

This case comes at a time one report notes ” “[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement.” Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff’s Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff’s Office…

Arbitration Matters

Two arbitrators address the issue of the COVID pandemic as a force majuere event

By John H Curley

October 11, 2020

Two recent awards involve questions concerning the existence or impact of the Corona virus as a force majeure event, potentially excusing claimed violation of the parties’ agreements. In American Association of University Professors – University of Akron Chapter, Arbitrator Jack Buettner concluded that the force majuere clause privileged the University’s actions when it implemented a “retrenchment.” The effects of the COVID pandemic are certainly unforeseen and surely out of anyone’s control. The number of cases…

Arbitration Matters

Last chance agreement, double jeopardy and just cause – Court confirms award reinstating employee notwithstanding Last Chance Agreement

By John H Curley

October 4, 2020

An earlier post, Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement, noted a complaint filed by Dana Corp seeking to set aside an award of Arbitrator Daniel Kininmonth. That award involved the termination of an individual who was subject to a last chance agreement (LCA). The LCA provided: In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have…

Arbitration Matters

Arbitrator finds Federal Bureau of Prisons failed to establish a BFOQ defense for refusing to assign female staff in an all male prison to ""Dry Cell" and suicide watch duty.

By John H Curley

September 27, 2020

In his award in U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Memphis Tennessee and American Federation of Government Employees, Local 3731, Arbitrator Daniel Kininmonth addresses the balance between the rights of male inmates to bodily privacy and the rights of female staff to be assigned to guard them. FCI Memphis is an all male, medium security facility. The grievance in issue involved the Bureau of Prisons’ decision to exclude female…

Arbitration Matters

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

By John H Curley

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…

Arbitration Matters

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

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Another case on zero tolerance, just cause, and a failed drug test

Zero tolerance, a drug test and just cause

Back pay – Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

Quick hits – Union dues, self defense, and clearing a grievant’s name

Arbitrator upholds termination of Sheriff’s Deputy for off duty use of force

Two arbitrators address the issue of the COVID pandemic as a force majuere event

Last chance agreement, double jeopardy and just cause – Court confirms award reinstating employee notwithstanding Last Chance Agreement

Arbitrator finds Federal Bureau of Prisons failed to establish a BFOQ defense for refusing to assign female staff in an all male prison to ""Dry Cell" and suicide watch duty.

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

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