According to the Court’s opinion, the grievant’s superiors requested a medical excuse to justify his absence because of the number of sick days he had taken so far that year. At that point, the grievant took his son to his family medical provider’s office, explained that his son was not seriously injured (and they agreed he did not require medical treatment), but asking for a medical statement to justify his calling off work the previous evening. The medical assistant gave him an unsigned return-to-work form stating that his son had been receiving medical care for the last two days. In the meantime, the Chief found out about the poker game and began a more thorough investigation, which involved the use of subpoenas issued by a magistrate in the Mayor’s Court concerning possible criminal charges. The Grievant was never informed that he was under criminal investigation (as required by the CBA), but was ultimately accused of failing to call off work when he knew he would be late, calling off work without a valid excuse, failing to be truthful, and insubordination during the investigation.
The Safety Director held a pre-termination hearing on the
charges, but precluded questions about the subpoenas that had been issued. The Mayor then terminated the grievant. In the subsequent arbitration, the grievant
admitted that he had failed to report in advance that he would be late for work
and that he lacked a good reason to be absent, but denied being
untruthful. The arbitrator, however,
found that he was being untruthful when he attempted to mislead his superiors
with a misleading medical excuse:
As oftentimes happens, an employee will compound what in the
beginning is only a minor infraction or work rule violation. If the Grievant
would have merely come to work late and explained his circumstances, his
discipline, if any, would have been minor. Instead, as is often the case, the
"cover-up" becomes worse than the original offense. Misrepresenting
his son's condition by obtaining a false and misleading doctor's excuse in
order to obtain an excused absence is much more serious than forgetting that
there was a shift trade, reporting for work late after examining Tyler's' [sic]
injury, or even failing to show up for work at all and accepting an unexcused absence.
Accordingly, the arbitrator sustained the discharge.
The FOP then challenged the City’s use of subpoenas to
gather information and the Safety Director’s refusal to permit questioning at
his pre-termination hearing about those subpoenas. The bargaining agreement provided the
grievant with the right and opportunity to confront and cross-examine his
accusers. Although the arbitrator
refused to exclude the Grievant’s testimony introduced to rebut the evidence
gathered by the City with the subpoenas, the arbitrator instead awarded backpay
from the date of the termination to the date of the arbitration award as the
remedy to the City’s violation of the CBA.
On appeal to the common pleas court, the City argued that
the arbitrator exceeded his authority by awarding back pay for an issue not
properly before him. The FOP argued that
the grievant should also be reinstated because the award violated public
policy. The FOP also later argued that the award was procured by fraud because
federal court civil action discovery revealed that the City claimed it had been
conducting a criminal investigation of the grievant when the subpoenas were
issued, but had denied that repeatedly during the arbitration hearing.
The parties agreed that the issue of whether the grievant
had been fired for just cause was properly before the arbitrator. Generally, procedural issues that grow out of
such a dispute, such as the admissibility of evidence, is also properly before
the arbitrator.
However, whether the arbitrator had the power to grant Blake
a remedy for the City's improper use of subpoenas is a different matter.
Generally, an arbitrator decides whether or not a violation of a collective
bargaining agreement has occurred. After finding a violation, an arbitrator has
the power to grant a remedy for that violation. Queen City Lodge No. 69 at
syllabus. The FOP does not allege, and we have not identified, any provision of
the CBA that the City violated through its misuse of its subpoena power.
Consequently, to the extent that the arbitrator based his award to [the
grievant] on the City's misuse of its subpoena powers, the award lacks rational
support. The CBA does not give any ground or justification for the award. We
thus conclude that the arbitrator exceeded his authority when he premised his
award to [the grievant] on the City's collection of evidence through subpoenas
that were improperly issued.
Nonetheless, the procedural issues during the
pre-termination hearing – refusing to permit the FOP to question witnesses
about the City’s investigation – arguably violated the CBA even if issuing the
subpoenas did not. The CBA also has a
three-step procedure for filing and pursuing grievances (i.e., complaints about
breaches of the CBA). A dispute may
only be submitted to arbitration after these three steps have been satisfied.
Here, the award to [the grievant] conflicts with the express
terms of the CBA. The arbitrator effectively rewrote the CBA when he addressed
a grievance that had not proceeded through steps one through three of the
grievance procedure. As the CBA requires the exhaustion of that procedure
before the initiation of arbitration, the arbitrator exceeded his authority by
allowing [the grievant] and the FOP to bypass that procedure. See Portsmouth
v. Fraternal Order of Police, Scioto Lodge 33, 4th Dist. No. 05CA3032, 2006-Ohio-4387,
¶ 25 (finding that the arbitrator exceeded his authority when he considered a
grievance that the union member had not submitted to the pre-arbitration procedures
required by the collective bargaining agreement).
Accordingly, because the issue of whether the Safety
Director violated the CBA by restricting cross-examination during the
pre-termination hearing had not been properly grieved before being submitted to
the arbitrator, the arbitrator exceeded his powers in issuing a remedy on that
basis.
The Court then rejected the FOP argument that the arbitration
award violated public policy against sham subpoenas that arguably violated the
Fourth Amendment. The Court noted that
the City did not utilize any of the evidence gathered by the subpoenas in the
arbitration. Instead, the FOP introduced
copies of the subpoenas and gathered evidence to the arbitrator.
During his testimony before the arbitrator, [the grievant]
admitted to two violations of the code of conduct underlying his discharge. The
arbitrator found that those violations, alone, did not justify the termination
of his employment. However, when considering those two violations in
conjunction with the false and misleading doctor's excuse [the grievant]
submitted to the City, the arbitrator concluded that discharge was an appropriate
sanction. In determining that the doctor's excuse was false and misleading, the
arbitrator relied on [the grievant’s] version of events and Blake's admissions
that he knew his son was neither seriously injured nor under a doctor's care.
The arbitrator also considered [the grievant’s] disciplinary record, which [he]
verified during his arbitration testimony, and determined that he would not
mitigate the sanction imposed. After reviewing the totality of the arbitrator's
analysis, we conclude that the evidence adduced during [his] testimony, not the
evidence obtained through the subpoenas, led the arbitrator to sustain [his]
discharge.
Therefore, because the arbitrator relied only on the City’s
properly gathered evidence and the grievant’s own testimony and disciplinary
record, there was no basis to conclude that the decision to sustain the
discharge was based on illegally obtained evidence.
The fact that the charges
against the grievant were based on tainted evidence is not the same as the arbitration award being based on
tainted evidence:
The charges, which were set forth in Suciu's pretermination written
statement, were based on the tainted evidence. However, for a court to vacate
an arbitrator's award, the award must result from a violation of public
policy. Here, the award resulted from the arbitrator's determination that the
circumstances, as related by [the grievant] himself, warranted [his] discharge.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
