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City of Wilmington,
American of Federation of State, County and Municipal Employees,
Council 81, Local 1102, and
Raymond J. Donahue, Defendants.
C.A. No. 19561-NC
2003 Del. Ch. Lexis 26
2003 WL 1530503
173 LRRM (BNA) 2278
November 13, 2002, Submitted
March 21, 2003, Decided
John W. Noble, Vice Chancellor
Plaintiff City of Wilmington (the “City”) seeks the vacation or modification of an arbitration award that restored Defendant Raymond J. Donahue (“Donahue”) to his position as a code enforcement officer in the City’s Department of Licenses and Inspections (the “Department”). Donahue is a member of the bargaining unit represented by Defendant American Federation of State, County, and Municipal Employees, Council 81, Local Union 1102 (the “Union”). The City contends that the arbitration award must be vacated because it violates a clearly established public policy and because it does not draw its essence from the collective bargaining agreement that governs Donahue’s employment with the City. The parties have moved for summary judgment.
For the reasons set forth below, I conclude that, although the City has not shown that it is entitled to relief under the narrow public policy exception available to courts in the review of arbitration awards, it has demonstrated that the arbitration award did not claim its essence from the collective bargaining agreement. Accordingly, the arbitration award will be vacated, and the parties will be directed to return to the arbitration forum for further proceedings consistent with this memorandum opinion.
Donahue was hired by the City to work on a temporary basis as a code enforcement officer in August 1998. He received a full-time appointment as a Senior Code Enforcement Officer in May 1999 and that position was reclassified to Code Enforcement Inspector in July 1999.
On September 23, 1999, Donahue, dressed in his City uniform and under the influence of alcohol, approached several men on a street corner in Wilmington, identified himself as a police officer (which, of course, he was not), made offensive racial comments, told the men to leave the street corner, and eventually chased one of them away (the “September 23 incident”). The City imposed certain disciplinary sanctions against Donahue for this conduct. By letter, dated September 30, 1999 (the “September 30 letter”), the Commissioner of the Department of Licenses and Inspection (the “Commissioner”), in addition to informing Donahue of the various other sanctions, specifically advised Donahue that “if in the future . . . your conduct prevents or adversely impacts on your ability to handle any aspect of your responsibilities, you will be dismissed from City employment”. n1 Donahue signed the September 30 letter, thereby acknowledging his agreement with its terms, and it became part of his personnel file. Donahue did not invoke any available grievance procedure to challenge the discipline meted out.
n1 App. to Opening Br. in Supp. of Pl.’s Mot. for Summ. J. Seeking Vacating or Modifying of the Arbitrator’s Award (“Appendix”) at A054.
On February 12, 2000, Donahue, although off duty, was checking on a property which had been the subject of an enforcement action by the Department the day before. Donahue exchanged words with Sidney Roy (“Roy”) who was walking down the street. Roy eventually threw a chunk of ice through Donahue’s car window, striking him in the face. Donahue contacted the police and then chased after Roy. Before Donahue could catch Roy, two City of Wilmington police officers apprehended Roy. Roy resisted their efforts to subdue him and, according to the police officers, while they were struggling with Roy, Donahue approached them and, first, kicked Roy in the head and then, second, sprayed pepper spray in Roy’s face (the “February 12 incident”). The pepper spray also adversely affected the officers. Donahue was arrested and charged with assault. While he was being processed, Donahue made several offensive racial comments. The charges were eventually dismissed.
The February 12 incident resulted in the filing by the City of another set of disciplinary charges against Donahue. A pre-termination hearing was held by the Commissioner on February 23, 2000. The Commissioner, on February 29, 2000, terminated Donahue’s employment with the City, with the following explanation:
This is a difficult decision, however, the circumstances surrounding this unfortunate incident are most egregious and contemptuous acts committed by a person sworn to enforce laws, protect and serve the public. Your lack of self control and subsequent acts of violence go to the very core of public distrust and consternation. As to the issue raised by [the Union], stipulating that you were off duty when the incident took place, I find it impossible to separate the on versus off duty public trust employee who kicks an individual in the head as he is lying face down on the ground, under the control of and being handcuffed by the Police. You followed the kick to the head by spraying pepper spray in his face. This following your recent graduation from an “anger control” program. Your poor judgement and lack of self control reflects on the entire Department and all City Employees entrusted with protecting the public. These acts whether committed by you or another employee will not be tolerated.
This is not an isolated incident as evidenced by my September 30, 1999 letter to you relating to the three charges placed against you by the Wilmington Police Department at that time. In that letter (item # 7) you were specifically informed that “if in the future these charges lead to convictions or your conduct prevents or adversely impacts on your ability to handle any aspect of your responsibilities, you will be dismissed from City employment”. Even with the disposition of these charges pending, you have not exercised the self control necessary for a sworn officer as evidenced by this most recent incident. n2
n2 Id. at A079-80 (emphasis and underlining in original) (the “February 29 letter”). Significantly, Donahue’s deplorable race-based comments were not cited as a factor in this decision.
Donahue and the Union grieved his dismissal. At each step in the grievance process, Donahue’s termination was sustained. Donahue and the Union then demanded arbitration of the dispute regarding his dismissal as prescribed in the collective bargaining agreement, dated May 26, 1999, between the City and the Union (the “CBA”). Following the arbitration hearing on October 16, 2001, the arbitrator sustained the grievance. The arbitrator, by his March 18, 2002 opinion (the “Arbitration Award”), n3 ordered that Donahue be reinstated to his position as a code enforcement officer without the loss of seniority but without back pay or other benefits that had been lost because of the termination. n4 The arbitrator qualified his chosen remedy by noting that the refusal to award back pay was “not to be viewed as a disciplinary suspension.” n5
n3 Id. at A002-23.
n4 Id. at A023.
n5 Id. at A022.
The arbitrator concluded that there was insufficient evidence to find that Donahue, in fact, had kicked Roy in the head while Roy was being subdued by the police officers. He rejected the uncontradicted testimony of one of the police officers because, of the four persons present during the altercation, only one (that police officer) testified that Donahue kicked Roy. n6 The arbitrator focused upon Roy’s statement to the police following the incident that Donahue had kicked his head to the side. This, the arbitrator found, was inconsistent with the police officer’s testimony that Roy’s head went backwards after the kick. n7 The arbitrator, however, was persuaded that Donahue had discharged the pepper spray in Roy’s face, and, thus, concluded that “good and sufficient cause existed to discipline [Donahue] for the use of pepper spray on February 12.” n8 In addition, the arbitrator found that “the incident of February 12, standing alone, was clearly a serious offense by [Donahue].” n9
n6 Roy did not appear at the arbitration hearing. Donahue did not testify at the arbitration hearing. Because he was otherwise engaged in subduing Roy, the other police officer was not in a position to observe whether Donahue did kick Roy. The arbitrator was also troubled by the absence of medical records reflecting an injury consistent with the police officer’s testimony.
n7 Appendix at A016-17.
n8 Id. at A017.
n9 Id. at A018.
Despite these findings, the arbitrator concluded that termination was not the appropriate discipline. He premised his decision on his finding that Donahue did not kick Roy in the head and on his separate conclusion that the City had not disciplined another Department employee who had committed a similar offense. The arbitrator, in accepting Donahue’s “disparate treatment” defense, did not explore the nature of the other employee’s alleged offense and, indeed, specifically made “no findings at all concerning what [the other employee] may or may not have done, as his guilt or innocence [was] not a matter before [the arbitrator]” but, nonetheless, found that “the record evidence in this case . . . establishes the existence of disparate treatment.” n10 The arbitrator, moreover, was influenced by Donahue’s “exceptional and dedicated performance” as a code enforcement officer. n11 The arbitrator also concluded that he could not consider Donahue’s offensive racial remarks because they had not been cited as a basis for his termination by the Commissioner in the February 29 letter. n12
n10 Id. at A021.
The relationship between the City and Donahue is controlled by the CBA. n13 The CBA establishes the grievance and arbitration procedures invoked by Donahue and the Union and provides for arbitration as the final contractual step in the resolution of employment disputes of this nature. The arbitrator’s discretion under the CBA, however, is not unfettered. For example, the arbitrator must “limit the decision strictly to the application and interpretation of the provisions of the [CBA].” n14 Furthermore, the arbitrator does not have the “power to make decisions contrary to, or inconsistent with, or modifying, or amending, or adding to, or eliminating, or varying in any way, the terms of [the CBA].” n15 Disciplinary actions are authorized by Section 4.18 of the CBA which provides that “disciplinary measures may be taken for any good sufficient cause. The extent of the disciplinary action taken shall be commensurate with the offense, provided that the prior employment history of the Employee may also be considered pertinent.” n16 Finally, the arbitrator may, “modify or reject a disciplinary action” if, among other reasons, “there is not substantial evidence to support the need for disciplinary action” or “the action taken was unreasonable, capricious or arbitrary in view of the offense, the circumstances surrounding the offense and the past record of the Employee.” n17 Thus, it was under these standards that the arbitrator was charged with resolving the issues surrounding Donahue’s termination.
n13 Excerpts from the CBA appear at Appendix at A024-31.
n14 CBA § 4.12.
n15 Id. § 4.13.
n16 Id. § 4.18(a).
n17 Id. § 4.18(g)(1),(4).
The City first argues that the Arbitration Award must be set aside because it violates the clearly established public policy against racial harassment and the clearly established public policy requiring that City employees maintain the “public trust.” The City next asserts that it is entitled to relief because the arbitrator’s decision did not “draw its essence” from the CBA. The City further contends that the arbitrator did not appropriately consider the terms of the CBA and the City’s reasonableness in terminating Donahue in light of the offense, the circumstances surrounding the offense, and Donahue’s past record. The City maintains that either the arbitrator failed to properly apply the September 30 letter’s warning that further conduct would result in Donahue’s dismissal or the arbitrator implicitly and inappropriately modified the terms of the CBA including the terms of the September 30 letter. The City also contends that the arbitrator’s reliance on the disparate treatment of another City employee failed to reflect a proper understanding of applicable law. Finally, the City argues that the arbitrator’s decision is internally inconsistent because the arbitrator found that Donahue committed a serious offense but did not impose appropriate discipline in light of Donahue’s past record.
A. Standard of Review of an Arbitrator’s Decision
Summary judgment may be granted under Court of Chancery Rule 56 if there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. n18 “Summary judgment is an ‘appropriate judicial mechanism for reviewing an arbitration award, because the complete record is before the court and no de novo hearing is permitted to determine whether [the award should be vacated.]’“ n19 In addition, “the legal standard by which labor arbitration awards are reviewed is a stringent one.” n20 Courts rarely set aside an arbitrator’s interpretation and application of a collective bargaining agreement because that is what the employer and the union have “bargained for.” n21 Moreover, “the arbitration of labor disputes has long been held to be an efficient means of resolving these disputes and is strongly supported by public policy.” n22
n18 Cerberus Int’l, Ltd. v. Apollo Management, L.P., 794 A.2d 1141, 1150 (Del. 2002); Williams v. Geier, 671 A.2d 1368, 1375 (Del. 1996).
n19 Custom Decorative Moldings, Inc. v. Innovative Plastics Tech., Inc., 2000 Del. Ch. Lexis 131, 2000 WL 1273301, at *2 (Del. Ch. Aug. 30, 2000) (quoting E.I. duPont de Nemours & Co. v. Custom Blending Int’l, Inc., 1998 Del. Ch. Lexis 215, 1998 WL 842289, at *3 (Del. Ch. Nov. 24, 1998)).
n20 New Castle County v. Fraternal Order of Police, 1996 Del. Ch. Lexis 163, 1996 WL 757237, at *1 (Del. Ch. Dec. 17, 1996); see also Meades v. Wilmington Hous. Auth., 2003 Del. Ch. Lexis 20, 2003 WL 939863, at *4 (Del. Ch. Mar. 6, 2003) (“The role of courts in post-arbitration judicial review is limited.”).
n21 United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 599, 4 L. Ed. 2d 1424, 80 S. Ct. 1358 (1960).
n22 Delaware State College v. Delaware State College Chapter of the Am. Assoc. of Univ. Professors, 1987 Del. Ch. Lexis 536, 1987 WL 25370, at *2 (Del. Ch. Nov. 24, 1987). Although expressly excluded from the scope of Delaware’s Uniform Arbitration Act, 10 Del. C. Ch. 57, by 10 Del. C. § 5725, this Court’s equitable jurisdiction empowers it to hear disputes arising out of public employee labor arbitrations. See id. In addition, the general principles set forth in Delaware’s Uniform Arbitration Act have been applied in the context of public employee labor arbitrations. See Board of Educ. of the Appoquinimink Sch. Dist. v. Appoquinimink Educ. Assoc., 1999 Del. Ch. Lexis 188, 1999 WL 826492, at *4 (Del. Ch. Oct. 6, 1999).
B. Whether the Arbitration Award is Violative of a Clearly Established Public Policy
The City contends that Donahue’s reinstatement must be set aside because the Arbitration Award violated a clearly established public policy. For purposes of this analysis, I assume that the Arbitration Award is otherwise valid and consistent with the CBA.
An arbitration-ordered reinstatement may fall because a court will “not enforce a collective bargaining agreement that is contrary to public policy.” n23 The public policy must be “explicit,” “well-defined,” and “dominant.” n24 Furthermore, the public policy must be “‘ascertainable “by reference to the laws and legal precedents and not from general considerations of supposed public interests.”’” n25 However, the “courts’ authority to invoke the public policy exception is not limited solely to instances where the arbitration award itself violates positive law.” n26 Most importantly, the question is not whether the employee’s conduct violated public policy; instead, the question is whether the reinstatement imposed through application of the governing collective bargaining agreement would violate public policy. n27
n23 W. R. Grace & Co. v. Local Union 294, Int’l Union of Rubber Workers, 461 U.S. 757, 766, 76 L. Ed. 2d 298, 103 S. Ct. 2177 (1983).
n25 Eastern Associated Coal Corp. v. United Mineworkers, 531 U.S. 57, 62, 148 L. Ed. 2d 354, 121 S. Ct. 462 (2000) (quoting W. R. Grace & Co., 461 U.S. at 766 (quoting Muschany v. United States, 324 U.S. 49, 66, 89 L. Ed. 744, 65 S. Ct. 442 (1945))).
n26 Id. at 63.
n27 Id. at 62-63. I acknowledge that I am relying on federal precedent. Delaware courts, in reviewing labor arbitration matters, routinely look to federal precedent for guidance. See, e.g., Delaware State College, 1987 Del. Ch. Lexis 536, 1987 WL 25370, at *2-4.
The City first invokes its public policy against racial discrimination and argues that Donahue’s offensive racial comments preclude his reinstatement. The arbitrator did not consider this allegation because the February 29 letter did not cite any offensive racial actions or comments as a basis for the termination. The scope of the grievance and the ensuing arbitration in which the employee must defend his position are framed through that termination notice. The City is not free to add new issues as the disciplinary process progresses. n28 Thus, because Donahue’s racial conduct was not properly before the arbitrator, it does not provide a basis for this Court’s application of the public policy exception.
n28 The City argues that Donahue had notice of its concerns about his race-based conduct because the officer who processed him on February 12, 2000, and who heard those comments was present at the pre-termination hearing. That, however, does not change the simple fact that the February 29 letter does not include a finding as to race-based conduct and does not rely upon any such conduct for the sanction imposed. Furthermore, although the February 29 letter recites the “fair treatment of all people” as an “expectation inherent in serving the public,” it sets forth no facts regarding either “fair treatment” or race-based conduct. I also note that the “Memorandum for Record” from the Commissioner to Donahue regarding his suspension pending his pre-termination hearing was limited to the assault on Roy. See Appendix at A078.
The City next asserts that Donahue’s conduct in kicking Roy and discharging the pepper spray precludes his reinstatement. The Court may not consider the allegation that Donahue kicked Roy in the face as a basis for applying the public policy exception because the arbitrator found that Donahue did not engage in such conduct. While it is easy to appreciate the City’s skepticism about this factual finding, the arbitrator heard the testimony, squarely dealt with the issue, and set forth his reasons for disbelieving a police officer’s uncontradicted testimony. In light of the latitude given to an arbitrator’s factual findings, n29 I must accept that Donahue did not kick Roy. n30
n29 Meades, 2003 Del. Ch. Lexis 20, 2003 WL 939863, at *5 (“The purpose of arbitration is to resolve controversies cheaply and promptly without litigation. That purpose would be defeated if courts were allowed to become appellate tribunals empowered to review the merits of arbitration awards on the basis of legal or factual error.”).
n30 Thus, the only remaining “wrongful” conduct for consideration is Donahue’s discharge of the pepper spray.
In determining whether public policy would be violated by reinstatement of Donahue in light of his use of the pepper spray against Roy while Roy was being subdued by the police officers, I must first identify a “well-defined” and “dominant” public policy. n31 Donahue’s conduct clearly violated a host of well-defined and dominant public policies. That, however, is not the issue. Instead, I must determine if Donahue’s reinstatement would violate those policies.
n31 Exxon Shipping Co. v. Exxon Seamen’s Union, 73 F.3d 1287, 1291 (3d Cir. 1996), cert. denied, 517 U.S. 1251, 135 L. Ed. 2d 203, 116 S. Ct. 2514 (1996). Once the appropriate public policy has been ascertained, the Court will then determine if the arbitration award and its implementation would violate that public policy.
The City identifies several of its policies that, it contends, would be violated by Donahue’s reinstatement. The policies all implicate the charge to public employees to maintain the public trust. For example, by his oath of office, Donahue committed that he would “place the public interest above any special or personal interests.” n32 The Code of the City of Wilmington (the “Code”), Section 2-341(a), mandates that “each city employee, city officer and honorary city official shall endeavor to pursue a course of conduct which will not raise any justifiable suspicion among the public that he is engaging in acts which are in violation of his public trust and which course of conduct will not reflect unfavorably upon the city and its government.” n33 Also, the Code, Section 2-339(b), identifies the public policy that City employees should “avoid conduct which is in violation of their public trust or which creates a justifiable impression among the public that such trust is being violated.” n34
n32 Appendix at A032.
n33 Id. at A035.
n34 Id. at A033.
Thus, the City argues that in both of these two instances, the September 23 incident and the February 12 incident, “Donahue undeniably compromised the public’s trust.” n35 This argument, of course, may be correct but it misses the point because the Court’s focus is not on whether Donahue’s conduct violated public policy or the public’s trust. The troubling question presented in this case is whether the City’s references to the public trust identify one or more explicit and well-defined public policies and whether reinstatement would violate any of those policies. At the core of the City’s objection to the Arbitration Award is its recognition that Donahue’s reinstatement would require resumption of close personal contacts with the public, a public with which on two occasions he has demonstrated an inability to interact in an appropriate manner.
n35 Opening Br. in Supp. of Pl.’s Mot. for Summ. J. Seeking Vacating of Modifying of Arbitrator’s Award at 14.
The City’s argument fails because it has not identified an “explicit” and “well-defined” public policy that would be violated by Donahue’s reinstatement. First, the sources invoked to help define the pertinent public policy are neither “explicit” nor “well-defined.” The Code provisions which set forth norms of conduct appropriately associated with notions of the public trust are general in nature and, thus, not explicit. Moreover, any conduct that would lead to serious disciplinary sanctions could reasonably be characterized as a violation of the high standards to which we hold our public employees. Thus, the City’s contentions do not comport with the principle that “the public policy exception is narrow.” n36 Second, although a code enforcement officer interacts with the public in stressful situations as a representative of the City, that position does not involve the same strong considerations of public safety that more frequently have provided the underpinning for vacating an arbitration award on public policy grounds. n37 Finally, the City has not identified “a bright-line rule mandating dismissal for an incident of [this nature.]” n38 Unfortunately, both the September 23 and the February 12 incidents share a common theme: Donahue’s inability to control his emotions. While a second chance coupled with counseling may have been the appropriate resolution of the September 23 incident, the considerations that must accompany his reinstatement after either event are not that dissimilar. In short, the City has not explained why reinstatement by the Commissioner after the September 23 incident was consistent with public policy but reinstatement by the arbitrator following the February 12 incident violated the same public policy. n39 Thus, for the foregoing reasons, the City has not demonstrated that the Arbitration Award must be set aside as violative of a clearly established public policy. n40
n36 Eastern Associated Coal Corp., 531 U.S. at 63.
n37 See, e.g., Exxon Shipping Co. v. Exxon Seamen’s Union, 993 F.2d 357 (3d Cir. 1993) (vacating arbitrator’s reinstatement of a helmsman of an oil tanker who tested positive for marijuana after his ship ran aground); Gulf Coast Indus. Workers Union v. Exxon Co., 991 F.2d 244 (5th Cir. 1993), cert. denied, 510 U.S. 965, 126 L. Ed. 2d 375, 114 S. Ct. 441 (1993) (vacating arbitrator’s reinstatement of a petro-chemical technician involved in the supply of volative compounds who tested positive for cocaine); Amalgamated Meat Cutters v. Great W. Food Co., 712 F.2d 122 (5th Cir. 1983) (vacating arbitrator’s reinstatement of eighteen-wheel rig driver who overturned his truck when driving while intoxicated). But see Eastern Associated Coal Corp., 531 U.S. 57, 148 L. Ed. 2d 354, 121 S. Ct. 462 (refusing to disturb arbitrator’s reinstatement of a driver of heavy vehicles on public highways who had twice tested positive for marijuana).
n38 New Castle County, 1996 Del. Ch. Lexis 163, 1996 WL 757327, at *2.
n39 Whether the public policy exception would be triggered by continuing incidents of this nature, of course, is not a question presently before the Court.
n40 The City relies upon Stroehman Bakeries where the Court set aside an arbitrator’s reinstatement of an employee accused of sexual harassment on public policy grounds. Stroehman Bakeries, Inc. v. Local 776, Int’l Bhd. of Teamsters, 969 F.2d 1436 (3d Cir. 1992), cert. denied, 506 U.S. 1022, 121 L. Ed. 2d 585, 113 S. Ct. 660 (1992). However, “the arbitrator [in Stroehman Bakeries] made no findings concerning the incident, but merely ordered the employee to be reinstated. What [the Court] found violative of the public policy against sexual harassment was the arbitrator’s decision to return the employee to work without any findings about the incident. The effect of the award, therefore, undermined not only public policy generally, but also the employer’s specific anti-discriminatory practices.” New Castle County, 1996 Del. Ch. Lexis 163, 1996 WL 757237, at *2 (citations omitted). Here, the City did not fairly place Donahue on notice of its allegations of race-based conduct and the arbitrator made detailed findings about Donahue’s assault of Roy. In addition, although the arbitrator eschewed the term “disciplinary suspension,” he nonetheless crafted an award with the necessary consequence that Donahue suffered a substantial loss of pay and benefits because of his conduct.
As there are no material facts in dispute n41 and Donahue and the Union are entitled to judgment as a matter of law on this issue, partial summary judgment will be entered favor of Donahue and the Union and against the City on the City’s claim that the Arbitration Award is violative of public policy.
n41 Although there are material facts that were disputed in the arbitration forum (e.g., whether Donahue kicked Roy in the face), the facts which are material to the claims in this Court are not in dispute.
C. Whether the Arbitration Award “Draws its Essence” from the Collective Bargaining Agreement
The City’s next argument starts from the proper premise that an arbitration award “must draw its essence from the contract and cannot simply reflect the arbitrator’s own notions of industrial justice.” n42 However, “‘as long as [an honest] arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.’“ n43
n42 United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38, 98 L. Ed. 2d 286, 108 S. Ct. 364 (1987); see also Delaware State College, 1987 Del. Ch. Lexis 536, 1987 WL 25370, at *2; State, Dept. of Correction v. Delaware Pub. Employees Council 82, 1987 Del. Ch. Lexis 369, 1987 WL 5179, at *3, (Del. Ch. Jan. 7, 1987). This standard has also been framed as whether “the award bears no reasonable relationship to the underlying contract from which it is derived.” Meades, 2003 Del. Ch. Lexis 20, 2003 WL 939863, at *6.
n43 Eastern Associated Coal Corp., 531 U.S. at 62 (alteration in original) (quoting Misco, 484 U.S. at 38).
At the core of the City’s challenge is its contention that the arbitrator did not, perhaps because he could not, reconcile these two critical factors:
(1) The September 30 letter provided for Donahue’s dismissal if his conduct thereafter “prevents or adversely impacts on [his] ability to handle any aspect of [his] responsibilities;” and
(2) The arbitrator found that Donahue’s conduct on February 12 constituted “good and sufficient cause” for discipline and that it “was clearly a serious offense.”
The September 30 letter as a disciplinary action accepted by Donahue with specific potential consequences, together with the CBA, defines his contractual rights and duties as a City employee. The arbitrator was cognizant of the September 23 incident:
The [February 12] incident is even more serious, however, when viewed within the context of the September  incident. More specifically, this was not the first time [Donahue] overreacted to a situation and caused considerable difficulty. It was only several months previous that [Donahue] had been disciplined for over-aggressive behavior. In the September incident as well as the February one, [Donahue] apparently took actions based upon the mistaken impression that he could act as a police officer, or at least could portray himself as a police officer to the public. n44
Furthermore, the arbitrator was aware of the September 30 letter, which informed Donahue that certain future conduct would lead to his dismissal. Indeed, the arbitrator, in his opinion, set forth most of the text of the September 30 letter. n45 However, the arbitrator never addressed the applicability of the September 30 letter to Donahue’s conduct on February 12. Instead, as his opinion makes clear, the arbitrator relied upon his perception that Donahue had been subjected to disparate treatment, and then he proceeded to engage in a traditional balancing of factors, which included the nature of the offense and Donahue’s employment history. The arbitrator did not consider in his disparate treatment analysis whether the other employee’s continued employment with the City was also conditioned upon ongoing requirements such as those imposed upon Donahue by the September 30 letter. n46 Accordingly, because of the arbitrator’s failure to interpret the September 30 letter and apply it to the February 12 incident, he failed to “draw the essence” of his decision from the applicable agreement that governed Donahue’s employment. n47 Accordingly, the Arbitration Award reinstating Donahue cannot stand.
n44 Appendix at A018.
n45 Id. at A004.
n46 Instead, the arbitrator, in his discussion of the City’s reliance on its characterization of the September 30 letter as a “last chance” agreement to refute the disparate treatment argument, noted that the incident involving the other employee “may not have been the first time [he] was involved in an incident involving a physical altercation while employed by the City.” Id. at A020. Thus, there was no determination whether Donahue’s continued employment and the other employee’s continued employment were subject to the same (or similar) condition as imposed on Donahue by the September 30 letter.
n47 Thus, I need not consider the City’s companion argument that, by simply ignoring the ramifications of the September 30 letter, the arbitrator in substance modified the employment agreement. Similarly, I do not consider the City’s other claims regarding the arbitrator’s failure to consider appropriately the reasonableness and fairness of its termination decision.
The question, thus, becomes one of judicial remedy. The Court’s choices are vacating the Arbitration Award or modifying it. Here, the arbitrator did not address what the City has characterized as the “last chance” aspect of the September 30 letter as he evaluated the February 12 incident. Yet, it is the arbitrator’s (and not the Court’s) analysis and determination of that relationship for which the parties contracted. Thus, to allow the parties to obtain the benefit of their agreement to arbitrate disputes of this nature, the meaning and effect of the September 30 letter in light of the February 12 incident must, in the first instance, be evaluated in the arbitration forum.
Accordingly, because there are no material facts in dispute and the City, as a matter of law, is entitled to relief, summary judgment is granted in favor of the City and against Donahue and the Union, first, vacating the Arbitration Award requiring Donahue’s reinstatement and, second, requiring further proceedings in the arbitration forum to address the meaning and applicability of the September 30 letter in light of Donahue’s subsequent conduct during the February 12 incident.
For the foregoing reasons, partial summary judgment is granted in favor of Donahue and the Union and against the City on the City’s claim that the Arbitration Award should be set aside for violation of a “clearly defined public policy.” Summary judgment is granted in favor of the City and against Donahue and the Union (1) vacating the Arbitration Award requiring Donahue’s reinstatement as a code enforcement officer, and (2) requiring further proceedings in the arbitration forum as to the effect of the September 30 letter.
IT IS SO ORDERED.
John W. Noble
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