City of Owasso v. Fraternal Order Police

• Citation: 336 P.3d 1023,2014 OK CIV APP 75
• Decision Date: 15 April 2014
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1. ,111,441.
• Parties: The CITY OF OWASSO, OKLAHOMA, a municipal corporation, Plaintiff/Appellee, v. FRATERNAL ORDER OF POLICE, LODGE # 149, and Mike Denton, Defendants/Appellants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

336 P.3d 1023

2014 OK CIV APP 75

The CITY OF OWASSO, OKLAHOMA, a municipal corporation, Plaintiff/Appellee

v.FRATERNAL ORDER OF POLICE, LODGE # 149, and Mike Denton, Defendants/Appellants.

111,441.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

April 15, 2014.

Certiorari Denied Sept. 11, 2014.

James Patrick Hunt, Tulsa, Oklahoma, for Appellants.

Tony Puckett, Elizabeth Bowersox, McAfee & Taft, A Professional Corporation, Oklahoma City, Oklahoma, for Appellee.

Opinion

LARRY JOPLIN, Presiding Judge.

¶ 1 Defendants/Appellants Fraternal Order of Police, Lodge # 149, and Mike Denton (respectively, Lodge and Denton, or collectively, Defendants), seek review of an order of the trial court vacating a decision of an arbitrator as contrary to public policy. In this appeal, Defendants complain the parties' collective bargaining agreement expressly proscribes district court review of an arbitrator's decision, and the trial court erred as a matter of both fact and law in holding the arbitrator's decision violated public policy.

¶ 2 Defendant Mike Denton worked for the Police Department of the Plaintiff City of Owasso pursuant to the terms of a collective bargaining agreement (CBA), and was a member of Defendant Fraternal Order of Police Lodge # 149. A seventeen-year employee of the police department, Denton was terminated from the employment on the allegation of his use of excessive force on an arrestee in custody. Defendants filed a grievance to challenge Denton's termination as without just cause as required by the CBA.

¶ 3 The matter proceeded to a hearing before an arbitrator chosen by the parties. At the hearing, video evidence showed that Denton stepped on the arrestee's head, and struck an arrestee in the face with his elbow or back of his arm three times. Denton averred he struck the arrestee because he believed the arrestee was going to spit on him. City characterized the blows as “elbow strikes,” while at least one of three defensive tactics instructors referred to the blows as “more of a poke than a strike.” The evidence showed Denton struck the arrestee on the left side of his face, and although the booking photograph of the arrestee showed some injuries to the right side of the arrestee's face, the photo showed no injury to the left side of the arrestee's face.

¶ 4 On consideration of the testimony and evidence, the arbitrator held that, although “the force Denton used to restrain [the arrestee] was unreasonable and unnecessary,” and “[h]ad evidence of injury to [the arrestee] been established, this incident may well have fallen into the excessive force category[,] no such evidence was presented,” and “[a]bsent evidence of any injury, ... Denton's conduct in this instance does not rise to the level of excessive force as that term is defined in case law.” Considering Denton's commendable work history, lack of prior discipline for use of force, and the department's past “tolerance in meting out discipline when it comes to officer misconduct,” “the arbitrator [found] that a written reprimand ... is the appropriate level of discipline.” The arbitrator consequently set aside Denton's termination.

¶ 5 Plaintiff City then filed its petition to vacate the arbitrator's award in the trial court.¹ City asserted the arbitrator exceeded the authority granted under the collective bargaining agreement, and the arbitrator's decision to reinstate a police officer, determined to have used unreasonable force on an arrestee, violated Oklahoma public policy. Defendants objected, argued the collective bargaining agreement expressly proscribed review of the arbitrator's decision “in any court or ... appeal forum,” and asserted a counter-claim for enforcement of the arbitrator's decision.

¶ 6 Defendants then filed a motion for summary judgment. Defendants again asserted the CBA expressly proscribed judicial review of an arbitrator's decision,² and that, under the CBA, “[w]ith respect to the interpretation, enforcement or application of the provisions of [the CBA], the decision, findings, and recommendations of the arbitrator [were] final and binding on the parties.” Defendants argued the arbitrator's decision to reinstate and reprimand was entirely consistent with the level of discipline previously imposed by the police department in similar cases and implicated no violation of public policy.

¶ 7 City responded, and also asserted a motion for summary judgment. City argued that police department policy permitted the use of only such force as “reasonable and necessary under the circumstances,” specifically defined “excessive force” as “exceed[ing] the degree permitted by law or the policies of” the department, and presumed “the use of excessive force ... when a peace officer continues to apply physical force in excess of the force permitted by law or said policies ... to a person who has been rendered incapable of resisting arrest.” City pointed out that the arbitrator expressly concluded that Denton applied “unreasonable and unnecessary force” to the handcuffed arrestee, and expressly conceded “Denton's use of unreasonable and unnecessary force [was] an appropriate matter for discipline.” City asserted the CBA did not condition termination of the employment upon a finding of “excessive force,” and Denton's use of unreasonable and unnecessary force constituted just cause for the termination of his employment under the CBA.

¶ 8 On consideration of the parties' submissions and argument, the trial court held:

C. [T]he Court agrees that the Arbitrator was allowed to interpret the “law” and “policies” regarding excessive force as outlined in the Collective Bargaining Agreement (hereinafter the CBA). The Arbitrator states in his opinion that [Denton] used unreasonable and unnecessary force. This interpretation, although not agreed to by the City or the Officer, are not in conflict with the CBA, do not impose additional requirements, are not irrational, and are based on the terms of the CBA.

...

D. The decision of the Arbitrator to reinstate [Denton] violates Oklahoma public policy. As noted ... by the [City], “an established public policy” which “condemn[s] the performance of employment activities in the manner engaged in by the employee” combined with “... [A]rbitrator's finding of no just cause explicitly conflicts with that policy.” [Denton] in this case has engaged in conduct, as a police officer[,] that is contrary to statute. The conduct is inextricably related to his employment duties. [Denton]'s conduct in this case is sufficient to show that his continuing as an officer poses a special risk of injury, physical and psychological, to citizens, and, if he is allowed reinstatement, the department will be faced with explaining why Owasso allows abusive conduct by its officers, which is against the law.

... [T]he arbitration decision reversing termination is vacated....

Defendants appeal, and again assert (1) the CBA expressly proscribes judicial review of the arbitrator's decision and (2) the trial court erred in setting aside the arbitrator's decision on public policy grounds.

¶ 9 The courts afford great deference to a decision of an arbitrator:

... In Voss v. City of Oklahoma City, 618 P.2d 925, 928 (Okl.1980), we specifically adopted the review standard set forth by the U.S. Supreme Court in the Steelworkers Trilogy. United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) ; United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) ; United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Once it is established that there is a collective bargaining agreement with an arbitration clause broad enough to include the dispute the role of this Court is strictly limited to determining whether the arbitrator exceeded his authority under the collective bargaining agreement. Voss v. City of Oklahoma City, supra, W.R. Grace Co. v. Local Union 759, 461 U.S. 757, 764, 103 S.Ct. 2177, 2182, 76 L.Ed.2d 298 ; Amer. Postal Workers v. United States Postal Serv., 789 F.2d 1, 5 (D.C.Cir.1986). Affording great deference to the decision of the arbitrator, we will not review the factual or legal findings of the arbitrator nor consider the merits of the award. Georgia–Pacific Corp. v. Local 27, 864 F.2d 940, 944 (1st Cir.1988) ; Campo Machining Co., Inc. v. Local Lodge No. 1926, 536 F.2d 330, 332 (Okla.1976). ‘The fundamental purpose of arbitration is to preclude court intervention into the merits of disputes when arbitration has been provided for contractually.’ Voss v. City of Oklahoma City, 618 P.2d at 927. Hence, this Court may only consider whether the arbitrator's decision ‘draws its essence from the collective bargaining agreement.’ United Steelworkers v. Enterprise Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). See also Fabricut, Inc. v. Tulsa Gen. Drivers, 597 F.2d 227, 229 (1979).

... [T]he Court made clear almost 30 years ago that the courts play only a limited role when asked to review the decision of an arbitrator. The courts are not authorized to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract. ‘The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards.’ (Citation omitted.) United Paperworkers Internat'l v. Misco, 484 U.S. 29, 36 [108 S.Ct. 364, 370, 98 L.Ed.2d 286] (1987).

The goal of judicial review is to insure that the parties receive those things for which they bargained from the arbitrator. See Nicolet High School Dist. v. Nicolet Educ. Ass'n, 118

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