LA City Asks Court to Vacate Arbitrator’s Ruling on Removal of Unvaccinated Firefighters

The City of Los Angeles has filed suit against IAFF Local 112, the United Firefighters of Los Angeles City, and arbitrator Kenneth Perea seeking to vacate an arbitration ruling Perea handed down decision late last year. Local 112’s grievance claimed with city failed to follow proper notice requirements before removing unvaccinated members from the payroll, and that doing so violated past practice.

The lawsuit alleges that Perea exceeding his contractual authority by reinterpreting the Los Angeles City Charter, and infringing on the city’s managerial and corporate powers. Quoting from the city’s complaint:

  • On or about September 2, 2020, the City adopted a resolution formally declaring a fiscal state of emergency resulting from the COVID-19 pandemic.
  • On or about August 18, 2021, the City adopted Ordinance No. 187134 requiring all City employees to be fully vaccinated for COVID-19, or request an exemption, and report their vaccination status no later than October 19, 2021.
  • On or about October 26, 2021, the City adopted a resolution implementing consequences for non-compliance with the Ordinance.
  • The October 26th Resolution further stated, in pertinent part, as follows: “[T]he City would be subjected to a significant financial burden if it had to provide a weekly testing option for all unvaccinated City employees, or place all unvaccinated City employees on paid leave, while simultaneously paying overtime to cover staffing shortages resulting from their absence.
  • Either option would seriously compromise the City’s ability to meet its ongoing financial obligations and adequately provide essential public services to the public . . .”
  • The City decided to place all noncompliant workers on unpaid leave given the significant potential financial cost to the City.
  • As UFLAC admitted at the hearing, LAFD would have to backfill every position for noncompliant members who were placed off work.
  • This would total approximately 300 positions for which the City would have been required to backfill and pay extra compensation, while simultaneously paying the non-complaint members who were not working—all within one department at a time of financial decline.
  • As such, noncompliant UFLAC members were served with a notice placing them off duty without pay pending their Board of Rights hearing for failing to meet a condition of employment.
  • On or about December13, 2021, UFLAC filed a group grievance on behalf of its firefighters with the City /LAFD pursuant to MOU 23, Article 2.1, Section 5. MOU 23 is the contractual agreement between the City/LAFD and UFLAC which serves as the basis for the underlying arbitration in this matter.
  • The group grievance filed by UFLAC asserts a violation of LAFD Rules and Regulations based on the following allegations: (1) LAFD violated a requirement that service of process for disciplinary actions must be in person or by registered mail and (2) LAFD violated “lawful past practice by imposing disciplinary action and/or placing unit members on leave without pay and benefits.”
  • Under MOU 23, Article 2.1, “[a]rbitration of a grievance hereunder shall be limited to the formal grievance filed by the employee to the extent that said grievance has not been satisfactorily resolved.”
  • While the Award initially appears to indicate the arbitrator understood the scope of his authority, the Award thereafter goes on a tangent to reinterpret Los Angeles City Charter Section 1060, eventually finding the parties had a “mutual intent to integrate” Charter Section 1060 into their longstanding MOU.
  • The Los Angeles City Charter is the governing document of the City of Los Angeles, and can only be added to, modified, or altered through a majority vote of the citizens of the City of Los Angeles.
  • Charter Section 1060 sets forth the due process procedure for discipline of firefighters in the City, including selection of a Board of Rights, composition of a Board of Rights, and time and place of hearing, and provides the Fire Chief may temporarily remove any member (firefighter) from duty pending a Board of Rights.
  • The group grievance in this matter does not mention Charter Section 1060 or City Personnel Policy Section 33.1 as the bases of the group grievance.
  • [First Cause of Action]
  • The Court must vacate and set aside the Award because Arbitrator Perea exceeded his authority, and the Award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
  • Arbitrators exceed their authority if they issue an award that violates public policy or a statutory right.
  • First, the Award violates public policy because it infringes on the City’s police powers under the
  • California Constitution and the Charter of the City. The state constitution grants the City broad police powers to promulgate and enforce ordinances and regulations.
  • Such powers cannot be surrendered or delegated to an arbitrator.
  • The City exercised its police power pursuant to its broad authority when promulgating the Ordinance and effectuating the subsequent enforcement actions.
  • This included, specifically, ensuring the Department placed non-compliant employees off duty, without pay, within the prescribed timelines.
  • Placing non-compliant members on unpaid leave was, therefore, an inextricable component of the Ordinance itself and the City’s related police powers.
  • Consistent with the September 2nd Resolution and October 26th Resolution, the City’s decision to place employees on unpaid leave was also justified based on the City’s well-founded concerns for health and safety, as well as the intricately related financial concerns surrounding the pandemic.
  • Given the importance of maintaining its financial resources during public health emergencies, the City had a duty to safeguard its economic well-being in order to protect the health and safety of its employees and citizens.
  • Irrespective of his interpretation of the MOU or any other related personnel policies, Arbitrator Perea was not, and cannot be, in a position to determine whether and to what extent placing non-complaint members on unpaid leave was necessary or otherwise prudent as a matter of City policy and governance, particularly during a worldwide pandemic.
  • The City retains exclusive rulemaking authority to manage municipal affairs and address such issues based on the relevant circumstances.
  • Second, the Award violates public policy because it infringes on the City’s duty to protect health and safety.
  • [Second Cause of Action]
  • The Court must vacate and set aside the Award because Arbitrator Perea exceeded his authority.
  • The scope of arbitration is a matter of agreement between the parties, and the authority of an arbitrator derives from, and is limited by, the agreement to arbitrate.
  • Arbitrators exceed such authority when they act outside the scope of their contractually delegated authority by (a) deciding an issue which was not before them, and/or (b) issuing an award that amounts to a re-writing of the parties’ agreement.
  • Arbitrator Perea acted outside the scope of his contractually delegated authority by deciding an issue not before him. The applicable issue was whether the City violated an established past practice by placing noncompliant members on unpaid leave pending their selection of a Board of Rights.
  • Arbitrator Perea asserted that Charter Section 1060, along with City Personnel Policy Section 33.1, is integrated within the grievance arbitration procedure under Article 2.0 of MOU 23, and as such, he suggested that he was required to construe Charter Section 1060 to decide the aforementioned issue.
  • However, by further suggesting that Charter Section 1060 is ambiguous on the issue presented, Arbitrator Perea decided multiple different issues that were not before him, including (i) whether past practice can and should be analyzed for purposes of Charter Section 1060, (ii) whether there is an accepted, binding past practice between the parties regarding Charter Section 1060, and (iii) whether the City’s placement of members on unpaid leave violated such past practice under Charter Section 1060.

Here is a copy of the complaint

Also attached is a 350 page version of the complaint complete with appendixes – for those who need all the details.

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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