By Jim Cline and Jordan L. Jones
In City of Rockford, 133 LA 572 (Simon, 2012) and City of Rockford, 133 LA 587 (Simon, 2013), the Arbitrator denied the police union’s grievance alleging a procedural violation of the CBA, but held that the City did not have just cause to terminate a ten-year veteran police officer based on two conflicting psychological fitness for duty reports.
In this case, an officer was ordered to take a psychological fitness for duty examination after being on leave for experiencing a recurrence of post-traumatic stress symptoms. The officer was subsequently terminated based on a report by a psychologist retained by the City which determined that he was not fit for duty. The Union sought another psychologist that found the officer fit for duty.
In their first grievance, the Union alleged that the City violated the CBA by unilaterally dismissing an officer after the submission of a second, conflicting fitness for duty examination. The Union stated that “[n]o provision in the CBA gives the City the right to terminate an officer where there are two inconsistent fitness for duty examinations.”
The City contended that it had the authority to discharge the officer under the Management Rights Clause of the CBA and that “no other provision, including the provision related to fitness for duty, abridges this right.”
The Arbitrator noted that the CBA granted “each party the right to obtain a fitness for duty evaluation, but does not specify what process should apply where there are competing fitness for duty evaluations.” The Arbitrator noted that the CBA provision in question appeared to have a gap.
A gap exists when the parties have omitted a term necessary to carry out or administer an agreed-upon proposal. Gaps also arise for a variety of reasons, but they involve different interpretive tools that hinge, in part, on applying default rules to fill in the missing information. Default rules may arise from the contract language itself. At other times they may be found in extrinsic evidence that demonstrates what the parties would have intended had they foreseen and considered the situation.
The Arbitrator found that the documents and testimony presented in the arbitration hearing revealed that the parties never agreed to additional tie-breaking procedures. The Arbitrator also noted that in settlement discussions, the City and the Union had discussed gap-filling language, but for the limited purpose of a grievance settlement, not as part of contract negotiations.
The Arbitrator held that the CBA did not provide her the authority to remedy the gap in the contract and that in the meantime, the default rule for the CBA is that the Union can challenge the termination of the officer under a just cause standard.
Thereafter, in their second grievance the Union argued that the City did not meet the just cause standard to discharge the officer and that their own report says that the officer is fit for duty. In addition, the two conflicting reports do not point to any misconduct performed by the officer.
The City argued that it had just cause to terminate the officer based off the psychologist’s report that he was not fit for duty. The City goes on to contend that it “followed the contract in all respects: the police chief had reasonable cause to order the fitness for duty exam and authority to chose [sic] the psychological report he found most reliable.” The City also stated that the psychologist’s findings were backed up by years of experience of working with police officers and evaluating their fitness for duty.
The Arbitrator found that the just cause standard applied to this case and therefore the City must establish by a preponderance of the evidence that it was suitable to discharge the officer. The Arbitrator stated that:
In a just cause case where the burden of proof is with the employer, the decision to discharge must turn on more than a choice between two conflicting medical opinions from two qualified psychologists. For similar reasons, the decision to reinstate [the officer] . . . which the Union urges, cannot be made on this record.
The Arbitrator held that the City did not have just cause to terminate the officer and that he should be reinstated after being evaluated by a neutral doctor that he was fit for duty.
This pair of arbitration decisions fairly well capture the types of complexities that can arise on fitness for duty grievances. This Arbitrator navigated through these complexities rather well to end up at what appears to be a sound result.
The first of the arbitration decision dealt with the question of whether the case was even subject to arbitration. This contract, like many public safety labor contracts, provides for a fitness for duty process without stipulating the precise appeal process where there are inconsistent findings by the medical professional hired by the Employer and that hired by the union or employee. Where there is such a process, and an existent just cause clause, that should be understood to mean that such a conflict is subject to the contract grievance process, and this is what this Arbitrator did. The employer argument that it had a unilateral right to decide has been made often before but it was properly rejected.
In the second case, the Arbitrator struggled a bit more to arrive at a result. We have argued, and arbitrators have often agreed, that in the where there are conflicting medical opinions about whether the employee should be retained, the arbitrator is authorized to make the final call. We have resisted employer proposal for “medical arbitration” where the two medical experts select a third one to make a final and binding decision. We resist such clauses because often the question isn’t just whether the employee is fit or unfit but whether there is a reasonable accommodation that can be made. Since “reasonable accommodation” is inherently a legal question, we would much rather have that decision made by an arbitrator, not a doctor. An arbitrator, for example, might conclude in a given case that asbn employee was not fit but was still entitled to further leave or treatment options before being terminated.
In this case, though, the ultimate fact question was simply whether or not the employee was fit. In that context, the arbitrator, as others have before, punted the question to a third doctor. While the Arbitrator likely had jurisdiction to make this decision, arbitrators are frequently hesitant to reinstate where there is a substantial question about an employee’s fitness. So while this result was a bit of a “dodge” it is one that many arbitrators would have made in the context of these presented facts.
