City of Omaha v. Prof'l Firefighters Ass'n of Omaha

• Decision Date: 06 August 2021
• Docket Number: No. S-20-735.,S-20-735.
• Citation: 309 Neb. 918,963 N.W.2d 1
• Parties: CITY OF OMAHA, appellant, v. PROFESSIONAL FIREFIGHTERS ASSOCIATION OF OMAHA, LOCAL 385, AFL-CIO, appellee.
• Court: Nebraska Supreme Court

309 Neb. 918

963 N.W.2d 1

CITY OF OMAHA, appellant,

v.PROFESSIONAL FIREFIGHTERS ASSOCIATION OF OMAHA, LOCAL 385, AFL-CIO, appellee.

No. S-20-735.

Supreme Court of Nebraska.

Filed August 6, 2021

Heidi A. Guttau and George E. Martin III, of Baird Holm, L.L.P., Omaha, for appellant.

Michael P. Dowd and John E. Corrigan, of Dowd & Corrigan, L.L.C., Omaha, for appellee.

Heavican, C.J., Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J.

After the City of Omaha (City) sought to discharge Steve LeClair, a firefighter and the president of the Professional Firefighters Association of Omaha, Local 385, AFL-CIO (union), LeClair exercised his contractual right to challenge his discharge in arbitration. The arbitrator found that the City did not have just cause to discharge LeClair and ordered his reinstatement. The City responded by attempting to have the arbitration decision vacated in district court. The district court not only denied the City's motion to vacate and confirmed the arbitration award, it found the City's motion to vacate was frivolous and ordered it to pay the union's attorney fees and costs. In this appeal filed by the City, we find that while the City's motion to vacate was not frivolous, the district court did not err in refusing to vacate the arbitrator's decision. We therefore reverse the award of attorney fees and costs, but otherwise affirm the decision of the district court.

BACKGROUND

November 2018 Incident and LeClair's Termination.

On November 9, 2018, LeClair was off duty and socializing at a bar in Omaha, Nebraska. R.J., an African-American patron at the bar, alleged that at some point during that night, LeClair made sexually suggestive comments to her and then later approached her, said the words "white power," and struck her in the back.

After R.J. filed complaints regarding the incident, LeClair was charged with assault and battery and disorderly conduct. He pleaded no contest to the charges and was sentenced to 6 months’ probation.

In addition to the criminal charges, the City also pursued an internal investigation. After the conclusion of the internal investigation, the City issued a letter to LeClair in April 2019 informing him that the City was discharging him from employment. LeClair promptly informed the City that he was invoking his right under the collective bargaining agreement between the City and the union (CBA) to challenge his discharge in arbitration.

Arbitration Hearing.

The parties agreed to an arbitrator, and a hearing was held before her in August 2019. The arbitration hearing lasted 3 days. Over 20 witnesses testified, and the arbitrator received nearly 100 exhibits. We provide only a brief summary of the evidence presented at the hearing that is relevant to this appeal.

The City presented evidence that R.J. filed a citizen's complaint with the Omaha Fire Department and later made a police report regarding the November 9, 2018, incident. The City presented evidence regarding the criminal and internal investigations it conducted after receiving R.J.’s complaints. It presented evidence that during the internal investigation, LeClair was instructed in a letter notifying him he was being placed on administrative leave not to discuss the investigation with other employees, and specifically not to engage in "unsolicited communications with OFD Investigator Captain Kim Remus." The City presented evidence that LeClair nonetheless called Kimberly Remus shortly after receiving that instruction and brought up the investigation. Remus testified that when she spoke to LeClair, LeClair informed her that he had been placed on administrative leave and speculated that it was because the fire chief, Daniel Olsen, had seen him talking to Remus in her office a few days before. Remus testified that she informed LeClair that his visit to her office was not the reason and that LeClair then became silent for a moment, said goodbye, and hung up.

Olsen testified that when both investigations concluded, he reviewed the reports generated in the investigation and watched surveillance video of the incident. After reviewing these materials and the CBA, Olsen concluded that LeClair could be discharged under the CBA and that discharge was the appropriate sanction. Olsen explained that in deciding to discharge LeClair, he took into account that LeClair's conduct would harm the reputation of the fire department.

At the arbitration hearing, LeClair attempted to show that the decision to discharge him was influenced by his prior political disputes with the City's mayor, that the City's investigations were unfair, and that the City's choice to discharge him was excessive in light of his prior track record as an employee and the way in which the City had disciplined other firefighters for misconduct. As part of this effort, LeClair elicited testimony from Remus that after she received a voicemail from R.J. about the November 9, 2018, incident, Remus returned the call and instructed R.J. how to file a complaint, which was not something she usually did. The City's human resources director also acknowledged he called R.J. to see if she was going to file a complaint after one of his initial contacts with her. LeClair also presented evidence that on the same day that police reports regarding R.J.’s complaint were provided to the City's mayor and forwarded to persons within her office and to a member of the city council, the Omaha World-Herald newspaper published an article regarding R.J.’s accusations. Other evidence at the arbitration hearing included an acknowledgment from an investigating police officer that the scope of the investigation was abnormal for an alleged misdemeanor; an email from the City's human resources director to one of the City's prosecutors, asking if the prosecutor had provided LeClair's attorney with the surveillance video of the incident and stating that he was fighting not to give LeClair the video prior to LeClair's being interviewed for the internal affairs investigation; and evidence showing that a pretermination conference was conducted by an individual not employed by the City.

LeClair also presented evidence regarding his history with the fire department. LeClair began working for the fire department in 2002, with some interruptions for military service. The only discipline in LeClair's file was a reprimand for being late for work in 2011. LeClair called a number of witnesses both from within and outside the fire department who generally testified that in their years of working with and knowing LeClair, they had never observed any acts of bigotry or racial discrimination, but that LeClair treated everyone equally. Evidence was also introduced that LeClair sought funding from an international firefighters union to establish a program to increase diversity in the fire department and that he encouraged his nephew, who testified he is "[h]alf black, half white," to join the fire department. LeClair also introduced evidence regarding the discipline the City imposed upon other firefighters for misconduct.

LeClair testified at the arbitration hearing. He denied ever engaging in racial discrimination during his life. Regarding the November 9, 2018, incident, LeClair denied "hitting on" R.J. or making any sexual advances toward her. He acknowledged that he elbowed R.J. and said "what white power," but he also denied there was any racial animus or violence intended. LeClair testified that earlier in the evening, he had been discussing white nationalist groups with his colleagues. He claimed he was attempting to make a negative statement about those groups, but that R.J. was not a part of his earlier conversations and that his statement was "not the right venue, not the right person, not the right frame of mind," and a mistake he regretted. He also testified that he did not realize the extent of the force he exerted on R.J. when he made contact with her.

Arbitrator's Decision.

After the arbitration hearing, the arbitrator issued a written decision. The arbitrator described the issue before her as whether LeClair's employment was terminated for just cause under the CBA. The arbitrator stated that she would analyze just cause through what she described as the "seminal definition" of the phrase set forth in Enterprise Wire Co. , 46 Lab. Arb. Rep. (BNA) 359 (1966) (Enterprise Wire ), a labor arbitration decision. The arbitrator explained that this definition required the consideration of the seven following questions:

1. Was the employer's rule or managerial order reasonably related to the orderly, efficient and safe operation of the business?

2. Did the employer give any warning as to any possible discipline or consequences that could result from that employee's action or behavior?

3. Prior to administering discipline, did the employer conduct an investigation to determine whether the employee did in fact violate or disobey a rule or order?

4. Was this investigation fair and objective?

5. Did this investigation uncover any substantial proof or evidence that the employee was guilty of violating or disobeying a direct order?

6. Did the employer obey all rules, orders and penalties evenhandedly and without discrimination to all employees?

7. Was the degree of discipline reasonably related to either the seriousness of the employee's offense or to the record of past service?

In assessing these questions as they related to the City's termination of LeClair, the arbitrator concluded that the first and second questions favored the City. The arbitrator concluded that LeClair had engaged in conduct for which he could be disciplined under the CBA and, in particular, that LeClair "engaged in conduct [that] was offensive to a citizen of Omaha" and had violated a direct order by contacting Remus after being instructed not to do so. The arbitrator also determined that LeClair should have known that such actions could result in discipline.

In answering the other Enterprise Wire questions, however, the arbitrator found...