Including a provision in your collective bargaining agreement that requires any and all discipline to be issued for “just cause” is not a novel idea. Simply stated, the “just cause standard” demands that all discipline be fairly and consistently administered.[1] Traditionally the only employer actions reviewed by the just cause standard were run of the mill disciplines: warnings, reprimands, suspensions, demotions, transfers, and terminations. However, recent arbitration decisions may indicate a willingness by arbitrators to expand the type of employer action reviewed by the “just cause standard” to include paid administrative leave, when the administrative leave is unreasonably lengthy or tainted in some manner.
Many public safety officers augment their base wages with income from working overtime and details. Often, while on an administrative leave, an employee will be ineligible to work overtime and details. This limitation to paid overtime and detail opportunities often has a significant impact on an officer’s ability to earn a livelihood. Nevertheless, the management of a department has a right to use paid administrative leave to investigate serious allegations of wrongdoing by employees. However, more and more arbitrators are beginning to recognize that departments sometimes abuse administrative leave as a def facto discipline, intentionally curtailing an officer’s wages. Understanding the impact of administrative leave on an officer’s life and income, arbitrators are beginning to examine the length and duration of administrative leaves under the just cause standard.
In a decision issued in June 2013, Arbitrator Betty E. Waxman found that the Town of Millbury had violated the collective bargaining agreement by failing to compensate Officer Dan Daly for lost overtime and details during the period of his almost 8-month administrative leave. Officer Daly, a member of the Millbury Police Association, MassCOP Local 128, was placed on administrative leave in July 2011 while Millbury conducted an internal affairs (IA) investigation of various allegations about Officer Daly’s professional and personal life, following a four month investigation of the same allegations by the Massachusetts State Police that had already concluded that no criminal charges were appropriate. The IA investigation of Officer Daly was conducted on a part time basis, by a fulltime officer of the Worcester Police Department. At the conclusion of his investigation, after interviewing every officer in the Millbury Police Department (“MPD”), interviewing approximately 45 civilians, reviewing all of the MPD personnel files, general orders, rules and regulations, as well as the MPD logs and videotapes, the Lieutenant issued a 140-page report that determined that there was insufficient evidence to prove any of the allegations, with the exception of a single charge that Officer Daly made a comment that was “disrespectful” about a superior officer. Based on the Lieutenant’s report, Millbury issued a written reprimand to Officer Daly for his comment.[2] At the conclusion of the investigation in March 2012, Officer Daly returned to work after missing over approximately $16,000 in overtime and detail opportunities. Following his return to work, the Union elected to challenge the length of Officer Daly’s administrative leave, based on the impact of the administrative leave on his opportunity to work overtime and details. The Arbitrator ruled that the length of the administrative leave and the scope of Lt. Bates’ investigation amounted to de facto discipline, issued without just cause.
In her decision, Arbitrator Waxman cautioned that other paid administrative leaves of reasonable duration that were tailored to investigate timely allegations might withstand a challenge, but the investigation Millbury conducted, “deprived [Officer Daly] of substantial income in order to explore more than a decade’s worth of allegations and gossip about on duty and off-duty conduct.”
The Arbitrator was moved by the part-time nature of the investigation, and was compelled to issue her decision, because the investigation’s “scope was bloated by the lack of any restrictions on time or subject matter. [the Lieutenant] was charged with exploring any and all matters that came to light during his investigation. In doing so, he sifted through all manner of gossip about [Officer Daly’s] police career and personal life — even matters that were undeniably stale.” Ultimately, Arbitrator Waxman noted that although the Lieutenant conducted a meticulous and comprehensive investigation, “the outcome […] stands for the proposition that justice delayed is justice denied.”
While the award in the Millbury case is the most dramatic statement by an arbitrator of the principle that an employer cannot let the administrative leave process drag out unreasonably, the police union’s across the Commonwealth have been pressing this issue for the last few years. In a November 2012 decision Arbitrator Michael Stutz converted Waltham Police Officer Paul Tracey’s 15 day suspension to a written reprimand, and ordered the Waltham Police Department to pay Officer Tracey for the approximate value of five months of lost detail and overtime opportunities (based on earnings from the prior year).[3] Officer Tracey, a member of MassCOP Local 160, was placed on administrative leave while the City investigated the allegation that he had assisted a Mayoral Candidate and City Council President in intimidating one of the politician’s tenants. However, the City’s investigation was unusually and unnecessarily long; Officer Tracey was not interviewed promptly; and finally, the internal investigation continued for more than five months after the District Attorney and the Attorney General had both concluded their investigations without taking any action. Arbitrator Stutz concluded that although some investigation by the City was warranted, the entire nine month administrative leave was unnecessary and unjustified. Based on the foregoing, Arbitrator Stutz determined that Officer Tracey should be compensated for five months (out of 9 months) of lost overtime and detail opportunities.
The lesson here is if your contract includes a just cause provision, overtime and detail opportunities are distributed equitably between members of your bargaining unit, and you believe your department is using administrative leave as a covert discipline tool, your department’s action regarding administrative leave might be ripe for a challenge under the just cause theory. Preserve your rights: when a bargaining unit member is placed on administrative leave, file a grievance immediately to preserve the timeline and circumvent your employer from raising untimeliness as a defense in the event the administrative leave drags on longer than one could file a Step 1 grievance. Remember, placing and maintaining bargaining unit members on long-term administrative leaves without a compelling justification is discipline – and in many cases it can be reviewed by an arbitrator.
Note: A version of this post appeared in the Summer 2013 issue of Mass C.O.P.’s newsletter “Roll-Call.”
[1] In 1964, Arbitrator Carrol Daugherty outlined a seven part test of “just cause,” that is commonly, although not universally, applied. According to Arbitrator Daugherty to be issued with “just cause” discipline must be: 1. Based on a reasonable work rule; 2. Employees must have adequate notice of the work rule; 3. The incident giving rise to the discipline must be investigated; 4. The investigation must be fair and objective; 5. The discipline must be based on sustainable proof; 6. The work rule must be evenly and uniformly applied to all bargaining unit members; and 7. The penalty provided must be proportionate to the offense/circumstances.
[2] The Union grieved Officer Daly’s written reprimand through to arbitration. In October 2012 Arbitrator Mary Ellen Shea, ruled that the written reprimand was issued without just cause, and ordered Millbury to remove it from Officer Daly’s personnel file.
[3] Officer Tracey was on a paid administrative leave for over nine months (April 20, 2011 – January 30, 2012).
