The spring 2017 ler 590 e government regulation ii 54

Info icon This preview shows pages 53–55. Sign up to view the full content.

View Full Document Right Arrow Icon
an exercise in factfinding” which was the arbitrator's function, not the appellate court's. The
Image of page 53

Info icon This preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
Spring 2017 LER 590-E: GOVERNMENT REGULATION II 54 | P a g e Supreme Court made it very clear that even an inquiry into a “possible violation of public policy” does not “excuse a court for doing the arbitrator's task,” noting: Had the arbitrator found that [the employee] had possessed drugs on the property, yet imposed discipline short of discharge because he found as a factual matter that [the employee] could be trusted not to use them on the job, the Court of Appeals could not upset the award because of its own view that public policy about plant safety was threatened. … With respect to Henderson, the majority here is doing precisely what the Supreme Court prohibited. The arbitrator's findings in this case are similar to those considered by a New York appellate court in State Corr. Officers & Pol. Benev. v. State. There, a correctional officer was suspended from duty for flying a Nazi flag from the front porch of his home on the 55th anniversary of Adolph Hitler's declaration of war on the United States. Several newspapers through-out the state reported the event. The department of correctional services charged the officer with violating rules prohibiting off-duty conduct which would “ ‘reflect discredit upon the Department or its personnel’ ” and prohibiting an officer from affiliating with groups having interests which would “ ‘interfere with the impartial and effective performance’ ” of the officer's duties. The suspension was submitted to arbitration, and the arbitrator found no nexus between the officer's off-duty misconduct and his employment, noting the absence of “evidence that his conduct harmed the Department's business, adversely affected [the officer's] ability to perform his job, or caused co-workers not to work with him.” The arbitrator concluded that the projection of possible harm, as opposed to actual harm, was not sufficient to permit restriction of the officer's symbolic free speech or regulation of his off-duty conduct. The court rejected the department’s request that the arbitration award be vacated on public policy grounds. It noted that it was bound by the arbitrator's decision unless it could determine that the award violated public policy in the form of a “well-defined constitutional, statutory or common law of this State.” It concluded that because neither state statutes, regulations, nor the employee manual “proscribes the reinstatement of an employee who engaged in conduct as established here but who nevertheless is found not guilty of the charges as submitted to the arbitrator,” it could not vacate the award as violative of public policy. The court noted that “[a]s abhorrent as [the officer's] personal conduct is, Judges cannot reject the factual findings of an arbitrator simply because they do not agree with them.” The court also rejected the department's request that it apply a balancing test to determine that the officer's right to freedom of expression was
Image of page 54
Image of page 55
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern