Last month, Arbitrator Stephen Befort denied the grievance of a Faribault County deputy who claimed the County did not have just cause to terminate his employment.  Deputy Dulac was terminated by the Faribault County Sheriff’s office for misconduct surrounding two different issues.  The first issue involved his off-duty conduct at a bar where he failed to secure evidence of criminal behavior.  The second issue involved him repeatedly pointing his loaded service weapon at other deputies as gunplay.

Arbitrator Befort found the incident at the bar where Deputy Dulac failed to secure custody of some Vicodin pills as evidence of possible criminal behavior warranted discipline but was not substantial enough to warrant discharge.  Arbitrator Befort, then turned his analysis to the second issue involving the pointing of his loaded service weapon at fellow employees.

This is not the first time, Arbitrator Befort has heard a case about gunplay in the workplace.  In 2005, Arbitrator Befort reduced a termination to a 30-day suspension for a deputy in Washington County who was accused of inappropriately pointing his gun at coworkers.  Arbitrator Befort stated in his award, the difference between the Washington County case and the current case was in Washington County there was evidence the supervisors were aware of the conduct, and never told the deputy to stop the behavior.  Additionally, in Washington County there was evidence of a culture of gunplay in the department.  Neither of these factors were present in the Faribault County case.

Arbitrator Befort agreed that Deputy Dulac’s actions of pointing a loaded gun at fellow employees was serious misconduct.  Deputy Dulac admitted he had done this on multiple occasions over the years.  The evidence showed none of the supervisors at the Faribault County Sheriff’s Office were aware of his actions.  During the course of the arbitration hearing, Deputy Dulac testified that two other deputies had pointed their weapons at Deputy Dulac many years before.  The County immediately began an investigation into Deputy Dulac’s claims, and the arbitration hearing was put on hold.  The subsequent investigation concluded that Deputy Dulac’s claims were unfounded.  All eight deputies who were interviewed during the investigation indicated they never observed another deputy, except Deputy Dulac, point a weapon at a colleague.

While most workplaces may not have guns, there may be other dangerous horseplay happening at work.  Arbitrators are not inclined to overlook dangerous working conditions.

Recently, I blogged about the basics of interest arbitration and the factors arbitrators consider.  To illustrate my point, I ran across a new interest arbitration decision which cites the very same factors in my blog post.  In Nobles County, Minnesota and Minnesota Teamsters Public & Law Enforcement Employees Union – Local # 320, Arbitrator Miller did a nice job of walking through each of the factors he considered when making his decision to deny shift differential to Jail Sergeants. 

The sole issue at arbitration was whether or not shift differential should be established for the Jail Sergeants and if yes, for what hours and what amount?  This was a brand new benefit the Jail Sergeants were seeking.  Nobles County opposed the inclusion of the new benefit.

Arbitrator Miller found that although Nobles County could afford to pay the new shift differential proposed by the Union, that wasn’t an automatic reason to award the new benefit.  Arbitrator Miller determined none of the County’s other settled bargaining units, including deputies who worked a night shift, received shift differential.  Only four of the eight external comparables offered some type of shift differential, and the amounts varied greatly from the amount requested in Nobles County by Teamsters Local # 320.  Lastly, there was no need to award shift differential as an incentive to attract or maintain Jail Sergeants, because out of the four Jail Sergeants, three had more than 10 years of seniority.

It is a big hurdle for either side to try and obtain a new benefit through interest arbitration.  By doing research you can see how arbitrators are making their decisions, which can  help in negotiations and in preparation for an interest arbitration hearing. 

The State of Minnesota recognizes that vital services are provided to the public by specific governmental employee groups, and therefore prohibits them from going out on strike.  These employees are considered “essential” and include firefighters, peace officers, public safety dispatchers, correctional facilities guards, confidential, and supervisory employees.  Instead of the right to strike, essential employees are afforded the opportunity to proceed to mediation and interest arbitration to resolve contract disputes over terms and conditions of employment.

Most arbitrators agree interest arbitration is supposed to reflect what the parties would have negotiated, had they been able to reach an agreement on the disputed contract terms.

Factors an interest arbitrator looks at include:

1)      What is the internal pattern? – What did other employees in the workplace receive in wages and benefits?  If all the other employees received a 2% wage increase, and this group is asking for a 4% wage increase, the group asking for 4% will have to justify why they are entitled to a higher wage increase than their fellow employees.

2)      What do external comparisons show? – I’ve blogged in the past about creating a good comparable group.  An arbitrator may look at what are other essential employees in the area received in wages and benefits.  For example, is this group of essential employees far under paid compared with other essential employees in the area, or are they average or over paid in comparison?

3)      What is the Employer’s ability to pay? – Is the Employer able to pay the increase in wages or benefits?  Public employers have an obligation to be fiscally responsible with public funds.  If a public employer can establish an inability to pay an increase in wages or benefits, it might be persuasive for an arbitrator.

4)      Is there a compelling need for a change? – If either party is interested in making a change to a benefit or to contract language, it is necessary to convince the arbitrator there is a compelling reason for the change.  Another argument is to show the arbitrator that an appropriate quid pro quo was offered at bargaining, in exchange for the requested change.

Keeping the factors an arbitrator considers in mind during negotiations and mediation, may help parties reach a contract settlement and perhaps even avoid the need for interest arbitration.

"Past practice" has to be one of the most misused phrases in labor relations, seldom used correctly by labor or management. In the past three months, the Bureau of Mediation Services has published a trifecta of arbitration decisions which spell out how to effectively break a past practice, how to establish that one exists, and how a past practice applies when the labor contract is silent.

In a City of Duluth case, Arbitrator Befort ruled in favor of the Employer in a case concerning standby pay. The Union argued there was an established past practice to pay travel time as part of standby pay. The Employer argued they provided clear notice to the Union they were ceasing the practice of paying travel time, and provided the Union with the opportunity to engage in bargaining over the decision. In the award, Arbitrator Befort sets out a nice primer on how to properly break a past practice when the contract is silent. He noted, 1) the Employer advised the Union of its intent to alter the practice following the expiration of the contract, 2) the Employer indicated a willingness to engage in negotiations over the topic, and 3) the Union failed to address the issue during the 2013 round of bargaining.

In an Isanti County case, past practice was again argued. But this time the Employer claimed the existence of a past practice to deny holiday pay to officers in a non-work status, who were receiving worker’s compensation benefits. Arbitrator Jacobs agreed with the Employer and indicated there was a 20 year history and practice of not paying holiday pay while the employee is off work on an injury.

Finally in the third case involving past practice, Arbitrator Beens ruled in favor of the State of Minnesota. The labor agreement provided the State would provide safety boots for 950 employees, but did not specify the amount that would be paid by the State. Instead, the State relied on a policy and a long-standing past practice to reimburse $125.00 for the cost of each pair of safety boots. The Union argued this amount was insufficient to cover unique sizes and specific boots sometimes needed by the employees. Where the contract was silent, Arbitrator Beens found a 20 year reimbursement policy raised the issue of past practice, and applied the classic standard test of: 1) clarity and consistency; 2) longevity and repetition of the activity; 3) acceptability of the pattern; and 4) mutual acknowledgment of the parties.

These three arbitration awards in less than three months are a trifecta for Employers on past practice. Employers with unionized workforces would be wise to review these three arbitration decisions, and use them as an instructional primer for future past practice issues.

In two recent arbitration decisions, grievances were denied in part because the action the Employer took was permitted under the “Employer Authority” or “Management Rights” article in the collective bargaining agreement.

In AFSCME, Council 65 and City of Chisholm, the street department employees’ filed a grievance after having their work scheduled changed by two hours. The City Administrator had the street department foreman notify workers two days before the shift change, that employees’ were to come in two hours earlier (prior to the start of the original shift) and leave two hours before the end of the original shift. All employees still worked an 8 hour work day. Arbitrator Gallagher ruled in favor of the Employer. He agreed that Article 4 reserved to management the right of “scheduling work.” Past practice arguments were made by the Union, but were unsuccessful.

In an arbitration between Minnesota Teamsters Public & Law Enforcement Employees’ Union, Local 320 and Chisago County, Arbitrator Bernice Fields ruled in favor of the Employer. The facts in this case involved a restructuring of the Sheriff’s department to accommodate $750,000 in budget cuts. The grievant was a lieutenant in the Sheriff’s department, who was subsequently demoted to sergeant with a cut in pay. All corporal and lieutenant positions were eliminated as part of a department-wide restructuring. A grievance was filed over whether or not the demotion was proper, whether the demotion was in retaliation for protected political/union activities, and whether past practice obligated the Employer to maintain the grievant at the salary of a lieutenant. Arbitrator Fields agreed the Employer Authority rights clause reserved the right to “establish and modify the organizational structure.” Arbitrator Fields stated, “Failure to recognize the Employer’s right to reorganize the work structure when it deems necessary would deny the Employer the ability to remain afloat and competitive in the turbulent financial whitewater that both public and private employers have navigated since 2008.”

All language in a collective bargaining agreement is important, but some of the most valuable language to an employer is the Employer Authority article. Employees care about wages and benefits, but Employers should put a priority on the language that is negotiated.

Our public employer clients often express frustration with employees who have a pattern of acting badly at work. How much longer do they have to put up with a problem employee? What options do they have? Two recent arbitration decisions underscore the point public employers are able to terminate employees who act badly at work. Both termination cases involved hospital workers, and were decided by two different experienced arbitrators.

Arbitrator Jacobs upheld the termination of a 30 year employee, who had a pattern of disciplinary problems, culminating in a verbal altercation with a fellow employee. The employee had a documented pattern of problems dating back to 2007 including attendance issues, insubordination, poor workplace demeanor, and attitude problems towards co-workers. Arbitrator Jacobs stated, “She has demonstrated an unwillingness and/or inability to change her workplace behavior or performance as the Employer wants. Keep in mind that the Employer gets to call the shots here in terms of what it expects from its employees. That someone has been doing it in a particular way for years does not carry the day. The question is whether they are doing it the way the Employer wants it done now. Here the grievant has a demonstrable problem doing that.”

Arbitrator Fogelberg upheld the termination of a hospital worker who also had a pattern of bad behavior. The final straw was a loud verbal altercation with another employee, which was interpreted as threatening and abusive. “[H]is disruptive behavior toward his fellow workers proved to have an adverse effect on morale and detracted from the Clinic’s ability to focus on its patients. Moreover, the steps taken by Management demonstrate little of the desired result was achieved.”

Crucial in both arbitration awards is the extraordinary efforts the employers had taken to advise the employee about work expectations. These efforts included documenting performance issues, coaching, counseling, training, and progressive discipline. While any one of the individual incidents may not have been termination worthy, the cumulative nature of the documented misconduct sustained the termination decisions.

All employers should read “document, document, document,” between the lines in both arbitration decisions. Train, transfer, try, and if the employee is still acting badly, then termination may be the appropriate action.

Recently, Arbitrator James Scoville agreed a Minnesota employer was free to terminate a Veteran because of the Veteran’s departure from the Employer’s driving principles. Under Minnesota law, a public employer cannot terminate an honorably discharged Veteran without a Veteran’s Preference Hearing. (Minn. Stat. 197.46.) A Veteran’s Preference Hearing may occur before a Veteran’s Board or Panel. Until the Board or Panel issues a decision, the Veteran remains in a paid status with full benefits.

In the case before Arbitrator Scoville, a six year employee of the Minnesota Sex Offenders Program was terminated because of two separate incidents which occurred in June 2011. Both incidents involved the Veteran’s inappropriate responses to Incident Command System Calls. In addition to the 2011 incidents, the Veteran had a discipline record of five separate disciplines in 2010 ranging from an oral reprimand to a 5-day suspension due to unauthorized absences. Arbitrator Scoville found the June 2011 incidents were radically different than the attendance issues in 2010, and the Veteran’s actions departed from the driving principles of the Minnesota Sex Offenders Program. Additionally, each incident came a day after the Veteran was coached about his job performance.

In this case, the Employer did the right thing. They tried corrective actions by coaching and counseling the employee and progressive discipline before resorting to termination. The Employer also documented their actions. Veterans deserve to be thanked for all they do for us, but they aren’t entitled to a free pass when it comes to doing their job. Arbitrator Scoville made the right call here.

Remember to thank a Veteran today!

Many work accidents are preventable through training and actively managing employees. Accidents at work can be devastating to the public, employees, and the employer, not to mention the liability exposure and resulting loss of employee work time and productivity. The federal government maintains statistics on fatal accidents, as do most states. Most recently, the Monthly Labor Review reported on a “Survey of Occupational Injuries and Illnesses,” based on national data from state and local governments. The survey noted a higher rate of injuries and illnesses in the public sector as compared to the private sector, and a higher rate of injuries and illnesses in local government workplaces, in comparison to state government. It is estimated there are approximately 1.6 million workplace injuries each year. The data is daunting.

Workplace safety numbers are impressive, but they only tell part of the story. Behind each workplace accident or injury, is the potential for employee discipline. Employees can and should be held accountable for safety violations. This month in Minnesota, two different arbitrators ruled in favor of the Employer, in two separate cases dealing with safety violations at work.

Arbitrator Martin upheld the termination of a public works employee who failed to stop for a school bus that had its flashing lights on and stop arm out. The Anoka City employee was driving a street sweeper at the time. No accident occurred and no small children were injured, but the arbitrator still upheld the employer’s decision to terminate the public works employee. He based his decision on the careful attention the City had paid to safety matters, and the safety training and policies they had adopted. The employee had a lengthy work record which included a laundry list of at least fifteen (15) past careless acts, including some intentional acts of disregarding safety rules. The Arbitrator noted there was no formula to determine discipline in safety cases “…how many events, over how much time, with what lulls require what discipline…” He did indicate the City did not have to wait for a serious accident before terminating the public works employee.

In another safety related case, Arbitrator Beens upheld the termination of a Metro Transit bus driver who had four chargeable accidents in a three year period. Almost four pages of the arbitrator’s award discuss the safety training, policies, and rules adopted by Metro Transit. A policy was in place indicating four “responsible accidents” within a three year period would result in termination. The driver had adequate notice her three previous accidents were going into her permanent file, and she elected not to grieve any of the prior determinations by the Employer.
The union and management disagreed on the definition of a “responsible accident,” and the arbitrator ruled in favor of the Employer, agreeing that a responsible accident means a preventable accident. Despite the union arguing the driver was well-liked by bus-riders, and enjoyed her job; safety won out in the end.

Employers prevailed in both arbitration cases because they had focused a lot of time, attention, and money relaying the importance of safety to employees through training, policies, and consistent application of discipline. Accidents will happen; Employers need to make safety a priority, and hold employees accountable for safety violations.

The economy is beginning to recover. Public and private sector employers however are still dealing with fallout from this recession. Last fall, I wrote about the impact on cities and counties of a $6 billion dollar budget shortfall facing the State of Minnesota. Our public sector clients have been taking this issue very seriously and attempting to cut budgets in all areas. Everyone knows it isn’t just the salaries paid to employees that affect an employer’s bottom line, but there are also all the benefits, like health and dental insurance, severance packages, and retiree health insurance to name a few, which all add up. More and more, employers have been attempting to get a handle on employee benefits, in order to get budgets under control.

In Minnesota, police officers are considered essential personnel and are prevented from striking. In lieu of a strike, police officers are permitted to go to interest arbitration if a new collective bargaining agreement cannot be reached through negotiations or mediation. In a recent interest arbitration decision (pdf) Arbitrator Richard Miller agreed the City could sunset the retiree health insurance benefit, in order to get a handle on future expenses.

It is a common axiom in arbitration that the party proposing a change to contract language carries the burden of proving their request is necessary and reasonable. I represented the City in this interest arbitration case. The Union’s primary argument against sun-setting the retiree health insurance language was a lack of a quid pro quo from the City. Arbitrator Miller rejected the Union’s argument and agreed with the City; sun-setting the retiree health insurance benefit was not a take-away, no current police officers were losing the benefit, and therefore a quid pro quo was not necessary.

Employers need to look at all avenues available for reducing expenses and controlling budgets. Just because a benefit has previously been provided to employees doesn’t mean it must continue. Public employers must get control of future costs to avoid what some are considering the next major economic tsunami – the bankruptcy of state and local governments.

The Commander of the USS Enterprise (the US Navy sailing ship, not Captain Kirk’s star fleet battleship), ran into rough seas over lewd videos he made while on-duty, and then aired for the crew of his aircraft carrier. Capt. Owen Honors has been temporarily relieved of duty, while the Navy is conducting a formal investigation.

The videos shot in 2006 and 2007 included gay slurs, suggestive shower scenes, and simulated sexual acts. Capt. Honors characterized the videos as an effort to blow off steam and boost morale on the ship, which was not well-received by the Navy. The videos, ”…were not acceptable then and are not acceptable in today’s Navy.” Navy Cmdr. Chris Smith stated, executive officers and other leaders “… are charged to lead by example and are held accountable for setting the proper tone and upholding the standards of honor, courage, and commitment that we expect sailors to exemplify.” Capt. Honors will have rough sailing ahead, and no doubt discipline will follow.

Goofing around with video doesn’t just happen on naval ships out at sea. A local Minnesota police department experienced similar poor judgment when several of its officers, including a supervisor, shot an anti-management video concerning on-going labor negotiations. The officers made a Star Wars parody while on-duty, with costumes and dialogue. The video was edited to include a rolling text screen like the original Star Wars films, a musical score, and credits. Management was portrayed as the evil empire, and the final scene included a picture of a City Council member with a voice over of the evil emperor.

The department conducted an investigation concerning the Star Wars video, which also uncovered that the employees had made other videos while on- duty. The investigation resulted in discipline of the involved officers. I represented the city at arbitration where Arbitrator Beens upheld a five day suspension of one of the officers, and Arbitrator Moeller reduced a ten day suspension of another officer to a seven day suspension. (pdf) Another case is still pending. 

The union argued the videos were part of team-building and stress-relief at work, but neither arbitrator was convinced. I think it is safe to say creating videos on-duty, unless it is part of a legitimate training function, is very problematic. It is activity which will surely lead to an investigation, and more than likely serious workplace ramifications for employees.