State Agency Rules Police Union Violated Duty Of Fair Representation To Police Officer Fired For Beating His Wife – Sandulli Grace Offers Tips For Unions To Defeat DFR Claims

The Commonwealth Employment Relations Board has ruled that the Amherst Police League – which is NOT a client of Sandulli Grace, PC and is NOT represented by any Sandulli Grace client – violated its duty of fair representation in its handling of a grievance concerning the termination of police sergeant.  The case, Amherst Police League, MUP-05-4521(April 23, 2009), underscores the need for Unions to adhere to internal procedures for grievances, even for grievances that seem downright worthless.  As a result of the DFR violations, the police union here could suffer significant financial damages.  Amherst Police League serves as an unfortunate playbook in how NOT to process a grievance. 

In this case, an alcohol-fueled Amherst Police Sergeant beat his wife at home during an off-duty argument.  His repeated hits resulted in injury to his wife.  The Sergeant fled the scene to his mother’s Vermont residence.  He turned himself into police the next day.  He subsequently admitted himself to hospital for depression, anxiety, and later treated by a psychologist for those issues and alcohol abuse.  He was charged criminally with domestic assault and battery, a misdemeanor.  He ultimately admitted to sufficient facts on this criminal charge, which was continued without a finding and later dismissed after a year of probation. 

 During the Town’s investigation, the Sergeant and a Union attorney met with the Town.  At the meeting, the Union attorney advised the Sergeant to say nothing because any statement could be used in a criminal proceeding against him.  Subsequently, the Town fired the Sergeant. 

 As a non-civil service town, the Sergeant’s primary way to challenge the termination was through the grievance procedure.  The grievance process here involved four levels: Step 1 (immediate supervisor) Step 2 (Chief), Step 3 (Town Manager) and Step 4 (arbitration).  The contract permits only the Union Grievance Committee to pursue a grievance beyond Step 1. 

 After being fired, the Sergeant then filed a grievance with his immediate supervisor and with the Town Manager.  His letter to the Town Manager said his private attorney would contact the Town Manager.  The private attorney never did.  After Step 1, the Union Grievance Committee then tabled the grievance for several months, without getting the Town’s written agreement to hold off.  The Union failed to communicate with the Sergeant or his attorney about the termination grievance for several months.

 During this grievance process, the Union’s attorney (a novice in labor law) promised the Sergeant’s private attorney that the Union will demand arbitration and will let the Sergeant’s attorney litigate the case (so long as the Sergeant pays the legal fees).  The Town expressed a general willingness to meet with the Sergeant about settlement, but the Union never relayed this offer to the Sergeant.  The Union also never invited the Sergeant to grievance meetings.

The Union Grievance Committee met with the Chief and the Town’s HR Director without the Sergeant.  Both the Chief and the HR director denied the grievance in writing.  The HR director’s response relied in part on the Sergeant’s refusal to speak on his own behalf.  The Union did not seek any legal advice on the merits of the grievance, although the Union’s lawyer (who primarily did real estate work) advised them to go to arbitration.  The Union then voted not to appeal this decision to arbitration and in part, relying on the Sergeant’s silence.  It failed to notify the grievant about its decision for two months.

 The Sergeant then filed a charge of prohibited practice with the Division of Labor Relations/CERB, alleging that the Union violated its duty of fair representation under the Law. CERB agreed with the Sergeant.  It ruled that the Union violated its duty of fair representation to the Sergeant through the following acts:

 

• The Union failed to notify the Sergeant during the grievance process about the Town’s willingness to meet with the Sergeant to discuss his employment situation, even though there is no evidence that the Town would have altered its stance during such a meeting.  CERB wrote, “The Union’s failure to alert [him] to this pivotal opportunity to challenge his termination shows a reckless disregard for [his] grievance and his contractual rights”
•  The Union unfairly combined Steps 2 and 3 of the grievance process.  CERB wrote, “The Union made this assumption without taking steps to ascertain whether [the Town Manager] had authorized [the HR Director] to act as his Step 3 representative at the meeting, or whether the Town had intended and agreed to merge the grievance steps.” 
•  As a result, CERB concluded that the Union failed to timely file an appeal of the grievance to the Town Manager, which allegedly resulted in the termination being upheld.
•  The Union promised to proceed to arbitration and then failed to do so.

 

There are several questionable facets to CERB’s decision.  Although CERB noted that the contract grants the Union with the exclusive right to process grievances, CERB seemingly disregarded G. L. c. 150, §5, a state law that entitles employees to individually process grievances without relying on labor organizations.  As a result of this state law, CERB placed inordinate emphasis on the Union’s handling of the grievance and less on the employee’s failure to assert his own rights. 

CERB also unnecessarily faulted the Union for believing that Steps 2 & 3 were combined.  The Union had a plausible argument that the Town, via its actions, agreed to merge these steps.  Finally, CERB appeared to impose a duty on Unions to relay detailed messages between employees and employers – such as the detailed reasons in support of a grievance and the employer’s offer to discuss the termination.  This duty appears to be higher than we believe previously existed for Unions.

CERB thankfully included a note in its opinion warning employees and unions that this case is highly unusual given the volume of errors made by the Union.  In other words, a Union that committed only one of the above errors might not be found to have violated its duty of fair representation.  CERB noted,“[W]e nevertheless affirm the general principle that a union that initially files a grievance for arbitration retains the discretion to subsequently withdraw it, so long as it makes a reasoned, non-negligent judgment, untainted by improper motives, about the merits of the grievance.”

As a result of the decision, the Union was ordered to see if the Town is willing to arbitrate the termination. If the Town is willing, then the Union has to pay for an independent attorney to represent the Sergeant.  If the Town is unwilling – and it is unlikely to imagine the Town will volunteer to expose itself to liability for terminating the Sergeant– the Union will be forced to pay lost wages to the Sergeant.  The only way the Union can avoid liability is for it to show that an arbitrator likely would have upheld the termination In other words, the Union has an incentive to show that the Town deservedly terminated one of its members.

Even though the case involved a highly unusual amount of errors, the case reminds Unions of the benefits of using best practices for resolving grievances.  The following practices are not necessarily strictly mandated by a duty of fair representation they may help defeat claims.

 

• Review your by-laws and constitution to determine your procedure for handling grievances and then follow this procedure.
• Notify the grievant of his or her ability to file his or her own grievance.
• Unless fully persuaded after an investigation that a grievance is meritless, file a grievance and process it through all steps up to arbitration.
• Vigilantly observe and enforce grievance deadlines (or seek extensions from the employer).
• Consider inviting the grievant to participate at steps of the grievance process and let the grievant present any non-frivolous argument on his or her own behalf (that does not mean the Union has to agree with the grievant)
• Notify the grievant in writing about relevant steps or developments of the process.
• Provide the grievant with an opportunity to present an argument in support of the grievance prior to(or during) Union deliberations about whether to demand arbitration.
• Demand arbitration even if (or especially if) the Union has not completed its decision-making process for proceed to arbitration and permitted the grievant to appeal the Union’s decision.  The Union can always withdraw its demand later!
• If the Union demands arbitration, notify the grievant in writing that the Union has the right to withdraw arbitration.
• If the Union declines to demand arbitration, notify the grievant in writing about any appeal process and the reasons for the Union’s decision to forgo arbitration.

Again, a Union’s failure to adopt any or all of the above policies does not necessarily violate its duty of fair representation.