What good is arbitration if it leads to this?
July 3, 2008 by Fred HosierPosted in: Dubious decisions, Here comes the judge, Special Report
Imagine this: An employee makes a crucial error, one that either costs the company a lot of money or even puts another person’s life in jeopardy. The company fires the employee, only to have an arbitrator reinstate the worker.
It’s not a hypothetical. It’s happening to the Cincinnati Police Department.
Since 1998, the city has fired 35 police officers for wrongdoing. The firings stuck 16 times, only because 11 cases involved criminal charges and five officers didn’t appeal.
The other 19 cases ended with a settlement or an arbitrator’s ruling that returned the fired officers to the job. Independent arbitrators ruled against the city and reinstated fired officers 16 of 18 times in 10 years, according to an investigation by the Cincinnati Enquirer.
Police blame the arbitrators, saying they’re reluctant to end an officer’s career and that they often compare old cases that were handled under a different disciplinary code with recent ones.
The police union says arbitration in cases of firing or severe discipline protect officers from the department’s uneven or excessive discipline.
Failed to provide medical assistance; promoted to sergeant
Officer Patrick Caton was fired for his involvement in a case in which a man died after police arrested and restrained him. The city fired Caton, and a federal judge found he and other officers failed to provide medical assistance to the man they had arrested, despite his obvious breathing problems.
Caton was later acquitted of assault charges. An arbitrator reduced his dismissal to a five-day suspension, concluding the mistakes he made weren’t serious enough to justify his firing.
He was promoted to sergeant just this year after scoring well on a civil service exam.
The family of the man who died in custody won a $6.5 million settlement, the largest in city history, after suing over the way Caton and other officers handled the man’s arrest.
Other officers who have returned to work include two who had sex with a drunken woman while on duty, one accused of taunting a suspect after shooting her with a Taser, and one who threw an Alzheimer’s patient to the floor, breaking his ribs, lacerating his liver and puncturing a lung.
The situation in Cincinnati isn’t likely to change, according to the newspaper’s analysis. Arbitration has been included in the police union contract for the last 20 years.
Have you faced a situation involving arbitration that went poorly? Or, have you had good success with arbitration? Let us know about your experiences.
Tags: arbitration, firing, police
July 7th, 2008 at 10:48 am
Yes, there may be an arbitration problem, but to me it sounds like Cincinnatti has a POLICE problem, first and foremost.
July 7th, 2008 at 11:38 am
You have to be very careful when drawing conclusions about an arbitrator’s award if you do not have the full facts as to why there was a decision to reinstate. Yes, on some occassions, arbitrators can make an erroneous decision to grant a grievance or reinstate without a reasonable explanation, but these cases are rare…in my experience (27 years, both sides of the table). I am not familiar with the Cincinnatti cases, but it is common for arbitrators to grant grievances when they find there is inequitable treatment…what the union is alluding to. There are exceptions to the rule, but arbitration is a good alternative dispute resolution process that saves time, energy and money. Don’t forget, particularly in the public sector, if an arbitrator’s decision is so erroneous that it violates public policy, the decision can be overturned.
July 7th, 2008 at 1:29 pm
Correct me if I’m wrong, but this type of arbitration appears to perpetuate the errors in judgement in previous cases. How does management ever reclaim the right to handle these issues the “right” way?
July 7th, 2008 at 1:42 pm
We have every right to draw the line in the sand, but we have to draw the line very clearly and give employees and the union notice of the change. It also helps to get the union/employee association on board. Although not always possible, arbitrators give deference to employers that make the effort to include employee groups. The effort may be enough to have the arbitrator balance in your favor. Also, don’t forget, it is the union’s burden to prove an employer has acted inconsistently on past cases. Very important to differentiate the cases and reason for different level of discipline. Very likely you will lose if you cannot show these things were considered at time of decision.
July 7th, 2008 at 5:40 pm
I agree with Jeffrey. Cincinnati has a police problem. How is the public in that city supposed to feel safe if they have to be concerned about criminals and officers who sexually assualt women, beat mentally impaired people and refuse medical treatment to someone who is clearly in need. In Florida a deputy was fired because she dumped a disabled man out of a wheel chair. He was not injured in other way. In Cincinnati the officer broke the ribs and lacerated the liver of an alzhiemers patient. And this guy is backl on the streets!? Insane.
July 8th, 2008 at 10:07 am
Every law enforcement organization has individual police or corrections officers that can be characterized as “bad cops” or “bad guards.” Cincinnati is no exception. The story states that the department has (attempted to) fire 35 officers since 1998. 35 firings in 10 years? That’s not a good record, but it’s not a bad one either - it’s about average.
As the article describes, the problem isn’t a police problem. The problem may be that the arbitrators may be overly sympathetic to the cry of the Union regarding a history of inequitable treatment. Please note that the article also states that Cincinnati PD has had changes (presumably modernization) of its disciplinary code. I wonder who CPD is using for its contract arbitrators, and if there is another alternative? Does anyone know if they are using the AAA?
The one thing that bothers me is the same thing Mike 2 touched upon. If CPD (and the City) believe the arbitrators’ decisions are erroneous, given that this is a public organization, why aren’t the appealing the decision to the state courts? Or did they do something foolish, like surrender their appeal rights to court in their CBA?
[BTW, in the interest of full disclosure, I work in HR for a law enforcement agency in the Mid-South]