Due Process Not Violated When Union Declines to Arbitrate Firefighter’s Termination

The US District Court for the District of Massachusetts has handed down an important decision on the intersection of a public employee’s due process rights and the union’s right as the exclusive bargaining agent to refuse to process a grievance to arbitration.

The facts are complicated, as are the intersecting legal issues. Let’s start with the background. Adam Laflash was a lieutenant with the Auburn Fire Department. He was accused of sexual harassment and sexual misconduct. Following an investigation, Lt. Laflash was given a Loudermill Hearing before Fire Chief Stephen Coleman on January 9, 2020.

For those not familiar with a Loudermill Hearing, it is an informal proceeding during which an employee is presented with formal charges (perhaps for the first time), given an explanation of the evidence upon which the charges are based, and given an opportunity to explain or rebut the allegations. It is not an evidentiary hearing in so far as there is no opportunity to present testimony or evidence. In short, it is not a full due process hearing. It is, however, required before an employee who has an expectation of continued employment (ie. is not an at-will employee) can be terminated. It’s name derives from the US Supreme Court decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541 (1985).

The holding of a Loudermill Hearing is considered to be Constitutionally adequate for due process purposes because it gives the employee the opportunity to explain or rebut the allegations, thereby reducing the likelihood of a manifest error that could easily be corrected. However, it anticipates that if the employee is terminated, he/she will have a right to a full post-termination due process hearing in the near future.

With that explanation, we return to January 9, 2020. Following the Loudermill Hearing, Lt. Laflash was terminated. At that point, Auburn Firefighters, IAFF Local 4157, filed a grievance on his behalf. The grievance went through the first two steps without resolution, leaving Local 4157 with the decision of whether to take the grievance to binding arbitration, or decline to proceed further.

Local 4157 conducted its own investigation into the allegations against Lt. Laflash, and upon its completion the executive board voted not to proceed. That decision was then confirmed by a 33-1 membership vote. Lt. Laflash then sought permission to process the grievance personally at his own expense. That request was denied.

As a result, Lt. Laflash had no avenue to obtain a full evidentiary hearing to contest his termination. He filed suit claiming that the town’s refusal to provide him with a full evidentiary hearing violated the 14th Amendment’s due process clause. The suit also named Deputy Chief Glenn Johnson, who conducted the investigation for the fire department and Chief Coleman as defendants.

In ruling that Lt. Laflash’s due process rights were not violated, US District Court Judge Timothy S. Hillman reasoned as follows:

  • The Constitution prohibits the government from depriving a person of life, liberty, or property without due process of law.
  • A public employee with a “reasonable expectation” of continued employment has a property interest in his continued employment.
  • Here, the parties agree that the plaintiff had a property interest in his continued employment with the Town.
  • Here, it is undisputed that before Coleman terminated the plaintiff’s employment, Coleman provided the plaintiff with notice of the charges against him, an explanation of the Town’s evidence, and an opportunity to respond at an informal hearing.
  • As to the post-termination process, the CBA’s grievance procedures provided the plaintiff with an opportunity to proceed to arbitration.
  • The Union was the plaintiff’s “sole and exclusive bargaining representative.”
  • Although the CBA granted the Union, not the plaintiff, the power to decide whether to pursue arbitration, the Union had a duty to represent the plaintiff fairly.
  • Every court to consider this issue — so far as this Court is aware — has concluded that grievance procedures in collective bargaining agreements like the CBA can satisfy a terminated employee’s procedural due process rights, even when the employee’s union decides not to take the employee’s grievance to arbitration.
  • While the plaintiff’s interest in his continued employment with the Town is strong, the process the plaintiff received creates little risk of erroneous deprivation.
  • Respect for the CBA’s grievance procedures, moreover, especially considering the plaintiff’s ability to hold the Union accountable to its duty of fair representation, is consistent with the public interest.
  • Accordingly, on balance, even though a post-termination hearing was not held, the plaintiff received the process he was constitutionally due.
  • No additional process, such as Coleman convening a post-termination hearing, was constitutionally required, and summary judgment is warranted.

Here is a copy of the ruling:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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