LA sues to vacate arbitration award in firefighter vaccination case

The City of Los Angeles is suing to vacate an arbitration award a firefighters’ union won in a lawsuit over placing firemen on leave if they did not have the COVID-19 vaccination.

The petition claims that the arbitrator who ruled in the union’s favor exceeded the scope of his authority by reinterpreting a section of the Los Angeles City Charter section dealing with the discipline of firemen to be integrated into a memorandum of understanding (MOU) between the parties.

“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,” read the petition filed on Thursday by City Attorney Hydee Feldstein Soto. City of Los Angeles v. United Firefighters of Los Angeles City, IAFF Local 112 et al., 24STCP00648 (L.A. Sup. Ct., filed Feb. 29, 2024).

In addition to United Firefighters of Los Angeles City, IAFF Local 112, the lawsuit also names as a defendant retired attorney and arbitrator Kenneth A. Perea. Emails and phone calls to Perea and the union were not responded to by press time on Friday.

Soto is joined in representing the city by Assistant City Attorney Vivienne A. Swanigan, as well as Deputy City Attorneys Erika L. Johnson-Brooks, Travis T. Hall and Chuong D. Nguyen. An email to city attorney’s office spokesman Ivor Pine was not responded to by press time on Friday.

The city and the union entered into MOU 23, which set forth procedures for grievance and arbitration procedures, in 2019, according to the complaint. The memorandum specified that arbitration procedures don’t cover “‘matters for

which an administrative remedy is provided under Section 1060 of the City Charter,’” the petition read, quoting from the memorandum.

In 2021, the union filed a class action grievance on behalf of firefighters who were placed on leave without pay for failing to meet the city’s COVID-19 vaccination policy.

The complaint, included as an exhibit with the city’s filing on Thursday, claimed that the department failed to serve notice in compliance with rules and regulations and violated past practices.

“Specifically,” the union complaint read, “the department has failed and refused to provide bargaining unit members the well-established due process and has failed and refused to follow the well-established procedures that by practice have been afforded to unit members before being disciplined, before being deprived of wages and benefits and/or before selecting a Board of Rights. UFLAC bargaining unit members have lost wages and benefits due to the department’s breach.”

In his findings as arbitrator last Nov. 21, Perea agreed that the city had violated past practice by placing the employees on leave before establishment of a board of rights, the petition read.

“While LAFD’s removals from service of UFLAC bargaining unit members who were non-compliant with the ordinance was in accordance with its managerial authority under MOU No. 23, City Charter Section 1060 and City Personnel Rule 33.1 … while clearly permitting removals from service due to an ‘emergency’ due to an immediate and direct threat to employees or the public, furthermore requires the employee be placed ‘off work with pay,’” Perea’s finding read.

However, the city said that Perea exceeded his authority by interpreting Los Angeles City Charter Section 1060.

“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,” the petition read.

The petition includes two causes of action for petition to vacate the arbitration award – one for violation of public policy and one for exceeding the scope of contractual authority – and seeks a court order setting aside Perea’s findings.