Tag Archives: Arbitration

Arbitration Trend: Unduly Long Administrative Leave May Very Well Be Discipline.

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).


Never Let The Truth Get In The Way Of A Good Story: David Williams And BPD Commissioner Ed Davis

On June 20, highly respected Arbitrator Michael Ryan issued a decision overturning the discharge of Boston Police Officer David Williams. All of the facts are meticulously set out in the decision’s 44 pages but are briefly summarized here.

On March 16, 2009, Michael O’Brien was a Middlesex Deputy Sheriff/Corrections Officer coming off his Providence bachelor party and St. Patrick’s Day celebrations.  After spending up to five hours at the Black Rose, a noted Fanueil Hall bar, he and two buddies headed to the North End, where one of them lived.  While trying to back his car down Hanover Street (the major two-way thoroughfare through the densely populated commercial area), his friend crossed the double-yellow line into a double-parked BMW.  The BMW owner called 911 as he saw O’Brien drive off in the car that had just struck his.  His recorded 911 comments included observations that O’Brien’s group were “drunk” and that although he was a “federal agent,” they were not in any trouble.

When Officers David Williams and Diep Nguyen responded to the call, their efforts to simply have the parties exchange papers were met by the seeming drunken hostility of O’Brien and his friends.  O’Brien held out his cell phone while yelling at the officers to do their jobs.  Inexplicably, he insisted the officers investigate the struck driver’s claims of federal agency.  Told that he could record them all he wanted but not in the middle of Hanover Street, O’Brien continued standing in the busy street.  When Officer Nguyen attempted to place him under arrest, O’Brien’s resistance caused Officer Williams, across the street writing a citation in his parked cruiser, to come to his fellow officer’s assistance.  Surrounded by O’Brien’s two friends, one of whom had to be physically pushed away from the officers, Williams made an “officer in trouble” call just as Nguyen was about to do the same.  Other officers arrived and O’Brien was placed under arrest.

The next business day, O’Brien, charged with disorderly conduct, resisting arrest, and assault and battery on a police officer (Nguyen), appeared in the Boston Municipal Court without notice to any of the arresting officers.  He plead not guilty and all charges were dismissed a month later after he performed 50 hours of community service.

O’Brien eventually filed a lawsuit against the officers and the city, claiming, among other allegations, that he had been nearly choked to death that night by Officer Williams.  That night, he had made no complaint of having been choked to the lieutenant who carefully inspected him at booking nor to the EMT’s who transferred him to the hospital.  Early on, he retained prominent civil rights attorney Howard Friedman.  As it turned out, for him, that was his best decision of all.

Three days after the incident, O’Brien filed an on-line complaint against the officers who arrested and subdued him.  The BPD’s vaunted Internal Affairs Division (“IAD”) conducted no investigation.  In September 2009, Atty. Friedman filed a complaint in Federal District Court against the City, Nguyen, Williams, and four other officers.  Friedman also initiated a second Internal Affairs complaint with the same allegations.  Still no investigation by the crack IAD unit.  In January, 2010, Friedman wrote a letter to Internal Affairs castigating them for failing to investigate the complaint.  In April 2010, IAD sprang into action, interviewing Williams and Nguyen for the first time about the incident that had occurred over a year earlier.  Shortly after receiving another irate letter from Atty. Friedman, BPD placed Williams on paid administrative leave.  IAD reassigned the case to another Lt. Det., who re-interviewed the officers, spent 20 minutes with BPD Dr. Kristian Arnold, and concluded that (a) Williams had choked O’Brien and (b) Williams had lied about it.

Following internal hearings before a Deputy Superintendent appointed by Commissioner Davis at which O’Brien, Williams, and Nguyen testified, Davis fired Williams in January 2012.  Shortly thereafter, the City paid O’Brien $1.4 million.  Williams had received unwanted notoriety after his discharge in the celebrated beating of Police Officer Michael Cox had been overturned by a different arbitrator in 2005.[1]

After hearing three days of testimony from all of the key witnesses, including O’Brien, Williams, and Nguyen, Arbitrator Ryan concluded:

After examining all of the evidence with great care, it is clear to me that O’Brien’s account of the incident was not truthful. If the officers became aggressive, and there is no doubt that they did, it was because the behavior of O’Brien and his friends warranted it. I do not believe that the grievant used excessive force, or that he choked or strangled O’Brien. He fully complied with Department Rule 304, Section 2, by using only the amount of force that was reasonably necessary to overcome O’Brien’s resistance to arrest.

He found further:

Since the grievant handled the incident of March 16, 2009, appropriately and did not use excessive force on O’Brien, it follows that he was not guilty of untruthfulness during the IAD investigation. There was no just cause for his termination.

The Arbitrator ordered Williams reinstated with back pay.  In addition, finding no explanation from the BPD for placing Williams on administrative leave 17 months after the incident, and relying on arbitration precedents between the parties, he ordered that Williams be made whole for the extra work (paid details and overtime) he was not allowed to earn while he had been on administrative leave.

The decision itself was not surprising.  Arbitrators, especially experienced and nationally prominent ones such as Michael Ryan, decide the cases based on the evidence before them, not on how they will be received by police commissioners or their friends in the media.  For that matter, Arbitrator Ryan, who has been hearing cases between the Boston Police Patrolmen’s Association and the City/BPD for more than 15 years, has decided many cases against the BPPA, including terminations and major suspensions.  He does his job: he calls them as he sees them.

What followed this decision is unfortunate, if predictable.  To Commissioner Davis, who attended none of the hearings, either at the BPD or the arbitration, the decision was “outrageous.”  Boston Globe editorial writer and columnist Lawrence Harmon chimed in with his column entitled, “Do arbitrators give violent cops a pass?”  I spent more than a few hours on the phone with Mr. Harmon trying to educate him with facts and analysis about the vagaries, biases, and shortcomings of the BPD internal affairs process.  When he called me just before submitting his story for a final quote and I asked him why the information I had given him was largely omitted from his analysis, he replied that what I gave him was “inside baseball” that nobody cared about.  I was reminded of the adage, “Never let the truth get in the way of a good story.”

The real story, largely ignored by the press, is why did the City pay $1.4 million to someone a neutral factfinder, after hearing all the evidence, pronounced “untruthful.”  The Police Commissioner likes to trumpet his campaign of intolerance for untruthfulness among police officers.  No one disagrees; police officers charged with the power to deny people their liberty must be truthful.  But what about civilians who lie in order to line their pockets with enormous sums of money from the City?

Continuing its insistence on ignoring reality, the City/BPD has now filed an appeal of the arbitration decision in the Superior Court.  Its court complaint cloaks its disagreement with the arbitration decision in the dross of “contravening the City’s inherent and non-delegable authority, the Police Commissioner’s statutory right to manage and administer the Police Department…and a clearly established and defined public policy.”  Although unstated, the “clearly established and defined public policy” being violated is apparently that whatever Commissioner Davis says, goes.  The complaint flaunts black letter law.  Arbitration awards are appealable on very narrow grounds; disagreement with the arbitrator’s factual findings is decidedly not one of them.

This case could not have proceeded this far without the unflinching support of the Boston Police Patrolmen’s Association, and in particular its President Tom Nee and Vice President Ron MacGillivray.  In addition to my work in the case, Attorney Kenneth Anderson of Byrne & Drechsler, LLP, represented Officer Williams from the initial internal affairs interviews through the last day of arbitration and assisted in the Union’s arbitration brief with his usual combination of astute preparation, dogged litigation skills, and unfailingly gentlemanly demeanor.

I, at least, hold out hope that someone in authority will see the futility of ignoring the obvious, return Officer Williams to his rightful place on the police force, and allow him to finish his career with the dignity and respect he deserves.


[1] I also served as counsel for the BPPA in that arbitration case, written by a different, but equally prominent, arbitrator, Lawrence Holden.

Arbitrator Reverses Discipline – Finds MassCOP Officer Was Not Insubordinate

Arbitrator Nancy Peace recently issued an arbitration award reversing disciplinary action issued to a Concord police sergeant. In the award, Arbitrator Peace found that the sergeant – who had a spotless 20 year record with the Concord Police Department – did not commit the offense he was accused of. The case includes some important language regarding the nature of insubordination, an offense that often leads to employee discipline. The Union was represented by Sandulli Grace attorney John M. Becker

The case involves the police department’s planning for a large public event in Concord. Sgt. Joseph Connell was not involved in the planning, but two other sergeants were. Sgt. Connell and his Union – the Concord Police Association, Local 260 of the Massachusetts Coalition of Police – understood these sergeants to be acting on a voluntary basis. At one point, the Police Chief asked Sgt. Connell to help with the planning on a voluntary basis. Sgt. Connell provided some assistance, but eventually e-mailed the Chief stating that there was nothing more to do. The Chief e-mailed back, “I want you to handle the scheduling for us.” Sgt. Connell responded (also by e-mail) that he did not want to volunteer to work on the planning, and he expressed concerns that the process had begun so late. The next thing Sgt. Connell knew, he was brought in to the Chief’s office and issued a written reprimand for insubordination. He was also reassigned from his midnight shift to the day shift where he would allegedly undergo training for an undetermined period. As it turned out, he was reassigned for seven weeks and received very little training. Interestingly, Sgt. Connell was required to take part in the event planning during his reassignment.

Sgt. Connell and the Union grieved the discipline and the reassignment and the grievance proceeded to arbitration before Arbitrator Nancy Peace. After hearing testimony from Sgt. Connell, Union President Chuck DiRienzo, the Police Chief and others, the Arbitrator ruled in the Union’s favor. According to the Arbitrator, insubordination must be determined by looking at the understanding of the person receiving the alleged order. Here, while the Chief may have believed he was giving an order, Sgt. Connell, based on all the facts, believed he was being asked to volunteer. The Arbitrator reasoned, “It is the responsibility of a superior officer to insure that his or her orders are clear and have been received. Where there is any indication that there may be some confusion or misunderstanding, as there certainly was here, it is the responsibility of the superior officer to investigate and clarify.” The Arbitrator concluded, “This grievance and arbitration could have been avoided had Chief Neal responded to Sgt. Connell’s August 25, 7:59 a.m. e-mail by clarifying that he was not asking Connell to volunteer to handle the scheduling; he was ordering or directing him to do so.”

Arbitrator Peace found that the Town violated the just cause provision of the collective bargaining agreement between the Town and the Union by issuing the discipline and reassigning Sgt. Connell to the day shift. She ordered the discipline removed from Sgt. Connell’s record and ordered him compensated for financial losses as the result of the reassignment.

Read the decision…

Sandulli Grace and MassCOP win confirmation of arbitration award reinstating officer fired for running out of leave, and holding that FMLA benefits are a floor of rights which can be improved in negotiations

Officer Tyrone Patruno was injured off the job, and then fired when he ran out of his paid time off and his unpaid FMLA leave.  The Barre Patrol Officers’ Union, MCOP Local 340, AFL-CIO, was represented by Attorney Leigh Panettiere of Sandulli Grace, P.C.  The Arbitrator agreed with the Union’s argument and found that there was a practice of offering light duty to officers injured off the job, and further that there was no justification for the Town to refuse to Patruno’s request for extended unpaid leave to recover from his injury.

The Town appealed the arbitrator’s award, arguing that the arbitrator exceeded his powers by requiring the Town to give more than the three months of leave guaranteed by the Family and Medical Leave Act.  The court rejected the Town’s argument (as did the arbitrator) on the basis that the FMLA is a floor of benefits and the parties are free to negotiate a greater benefit in their contract.  Patruno was ordered reinstated to light duty pending a doctor’s decision that he is fit for full duty, with back pay to the date his doctor cleared him to work light duty.

Public employers cannot unilaterally impose FMLA policies, because they impact availability of paid and unpaid leave, as well as compensation and job security — all mandatory subjects of bargaining.  Based upon this rule of collective bargaining law that was reaffirmed in the Barre case, Sandulli Grace advises its clients to watch for new FMLA policies, and contact their union representative if they believe an employer has imposed a policy without bargaining.

Download the decision…

Sandulli Grace Attorney Alan Shapiro To Speak At American Arbitration Association Conference

Attorney Alan Shapiro will be speaking on June 2, 2010, at a conference at the Boston office of the American Arbitration Association on the subject of Brief Writing and Closing Arguments.  The program flyer is available here.

Attorney Shapiro, whose clients include  the Massachusetts Coalition of Police and the Boston Police Patrolmen’s Association, has been representing labor unions in arbitration hearings, for more than 25 years.

Atty. Shapiro said, “I am honored to be invited by the AAA to speak at their program.  I hope I can help other practitioners by sharing what I have learned from practicing in this field for more than a quarter of a decade.”