By: Jim Cline and Clive Pontusson
In Addeo v. Philadelphia Firefighter and Paramedic Union, a firefighter sued both the City of Philadelphia and his union for violating his due process rights and his right to fair representation. Addeo had been fired following a DUI, and when the Union decided not to pursue his grievance, he filed a personal lawsuit that accused both the City and the union of misconduct. However, a federal judge dismissed all of Addeo’s lawsuit, finding that both the City and the Union had behaved properly.
Andrew Addeo had been a firefighter since 2004. In 2012, he was arrested for a DUI while off duty. He was disciplined for this arrest, and informed that a second DUI arrest would result in termination per the Disciplinary Code of the City. In 2015, he was arrested for a second DUI. He informed the union and the City several months later, after he was found guilty. The City terminated him because this was his second DUI offense. The Union initially grieved his termination, but then decided to withdraw his grievance.
Addeo sued the City arguing that they had denied him due process by failing to provide him with a pre-termination (Loudermill) hearing, or a post-termination hearing. The right of public employees to a Loudermill hearing is well established, and Addeo argued that none of the narrow exceptions to this requirement were present. Addeo also sued the union, arguing that they had bypassed their usual procedure for determining whether to support an employee’s grievance. He argued that the president of the union made the unilateral decision not to support his grievance when union rules required a vote of the executive committee. Addeo claimed that this conduct was arbitrary, and made in bad faith.
The City of Philadelphia argued that a pre-termination hearing was not required because of the “exigencies of the situation.” The City claimed that it had a strong interest in quickly removing employees who did not obey the law, because this violated the public’s trust. The City also argued that since the union did not grieve Addeo’s termination, it did not owe him any due process following his termination.
The Fire Fighters Union argued that they did not breach their duty of fair representation because Addeo did not exhaust his internal remedies—meaning he should have followed internal union procedures that govern when a union decides not to back an employee. More importantly, the union argued that Addeo had not shown any arbitrary action or bad faith by the union. Instead, they decided not to grieve his termination because they thought the facts were clear, and the city’s decision was clearly justified.
The federal court agreed with the city and the union, and dismissed Addeo’s claims against both defendants. In dismissing the due process claim against the City, the court distinguished this case from the famous Loudermill decision:
Loudermill’s “termination involved arguable issues,” as his “dismissal turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective question whether he had lied on his application form.” These concerns are simply not present in Addeo’s case. Unlike Loudermill’s termination, Addeo’s dismissal did turn on the objective fact of his second arrest.
In dismissing the claim for breach of the duty of fair representation against the union, the Court found that Addeo hadn’t demonstrated any bad faith by the union:
There is simply no evidence before the Court that the Union was openly hostile to Addeo. Addeo does not allege, much less produce evidence of, any kind of personal animus that would suggest the Union acted in bad faith. […]Moreover, Union President Andrew Thomas’s affidavit confirms there was nothing untoward about his decision-making: he was aware of Addeo’s multiple DUI arrests and the related violations of the Disciplinary Code and determined Addeo’s grievance lacked merit.
While public employees do have substantial individual rights with respect to both their unions and their employers, Addeo’s two DUI’s were clearly and inarguably grounds for his termination.
This case involved two separate legal issues – the City’s alleged Loudermill violation and the Union’s alleged violation of its Duty of Fair Representation (DRF). While the dismissal of the DFR claim is not surprising, the dismissal of the Loudermill violation appears inconsistent with existing case law.
A tenured employee is entitled to a due process hearing preceding the deprivation of “property” (which certainly includes keeping their job). So whenever an employer intends to fire someone who has just cause rights under the labor contract or civil service, they must be extended a “Loudermill hearing” and an opportunity to argue against their dismissal.
There is a link of cases that allows employers to bypass the Loudermill mandate for certain criminal cases. A Supreme Court decision (Gilbert v. Homar) – which was cited by this court – allows the employer to skip the Loudermill hearing for employees charged with felonies (provided they are still entitled to a prompt post-discharge hearing. The rationale for Homar is that an employee charged with a felony would presumably be unable to work and the Supreme Court indicated the “balance” of interests the employer’s ability to promptly remove the employee. But that principle has generally not been extended to less serious crimes such as the DUI at issue here. The employer here may have had just cause for the discharge, but the court’s ruling that Loudermill doesn’t apply is out of step with existing case law.
The DFR claim against the union as the court indicated, normally requires proof of bad faith or discrimination. There was a lack of such evidence here. But there is also a line of cases that hold that arbitrary handling of a grievance (even without proof of malice) can provide a basis for a DFR claim. The allegations the Plaintiff made here against the union alleged less than stellar processes. The claim was that the union failed to comply with its own internal procedures when the union president acted on his own to dismiss the grievance.
Unilateral action by one union officer and failure to comply with internal grievance handling procedures is certainly not “best practice” and could expose a union to DFR liability. This union escaped this lawsuit, but the lesson here is not to handle the grievance the way this union was reported to have done. Our DFR grievance handling guidelines strongly recommends adopting and adhering to internal review and decision-making procedures.
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