Positive Liberty

So there’s this toll collector in New Jersey named Jason Glassey. And one day, when he gets off duty, he’s feeling a little stressed. So he gets in his car, still wearing his uniform, and drives along the Turnpike until he gets stuck in traffic behind a van. Like many folks, he scoots over to the right lane and passes the van. And like any good, sensible public employee, as he’s passing the van, he reaches over for his paintball gun and shoots at the van that has caused the backup.

Naturally, such absolutely inappropriate behavior would get him fired. Shooting at cars, even with a paintball gun, is not what any rational person would consider appropriate conduct, even if it’s off shift, for a person who is a toll collector on the New Jersey Turnpike!

But if you thought that, you would have forgotten about public employee unions, which insisted that Mr. Glassey should keep his job. An arbitrator agreed, and the employer appealed to the Supreme Court, arguing that reinstating him after such conduct would contravene public policy. As in, well, duh! Nevertheless, on Monday, the state Supreme Court upheld the reinstatement order. A decision to reinstate a fired public employee, the Court said, could only be voided if it violated “public policy…embodied in legislative enactments, administrative regulations, or legal precedents, rather than…amorphous considerations of the common weal.” New Jersey Turnpike Authority v. Local 196, 2007 WL 1174206, *5 (N.J. 2007). To quote Tim Allen, “urrh?!”

“To be sure, the State has a public policy against aggressive driving,” said the Court. “Although Glassey’s conduct violated that public policy, his reinstatement to his position as a Parkway toll collector is not contrary to any embodiment of public policy…. [W]e find that the award reinstating Glassey to his position as a toll collector did not implicate any statutory, regulatory, or precedential embodiment of public policy.” Id. at *9.

Even more mind-blowing are some of the precedents the Court relied on:

[D]eference to an arbitrator’s award reinstating an employee to his former position following admittedly serious misconduct is consistent with arbitration jurisprudence across the nation. See, e.g., Boston Med. Ctr., supra, 260 F.3d 16 (ordering reinstatement of nurse charged with substandard conduct following infant’s death); Westvaco Corp., supra, 171 F.3d 971 (upholding award reinstating employee who sexually harassed coworker); Saint Mary Home, Inc. v. Serv. Employees Int’l Union, Dist. 1199, 116 F.3d 41 (2d Cir.1997) (upholding reinstatement of employee who assaulted co-worker and was found in possession of less than ounce of marijuana); United Food & Commercial Workers Int’l Union, Local 588 v. Foster Poultry Farms, 74 F.3d 169 (9th Cir.1995) (ordering reinstatement of employees who failed drug test); Chrysler Motors Corp. v. Int’l Union, Allied Indus. Workers of Am., 959 F.2d 685 (7th Cir.) (reinstating employee who sexually harassed colleague), cert. denied, 506 U.S. 908, 113 S.Ct. 304, 121 L. Ed.2d 227 (1992); Local 453, Int’l Union of Elec., Radio & Mach. Workers, supra, 314 F.2d 25 (upholding reinstatement of employee convicted of gambling in workplace). Specifically, deference to a reinstatement award comports with the comparable result in United States Postal Service v. National Ass’n of Letter Carriers, 839 F.2d 146 (3d Cir.1988). There, a postal employee confessed to firing “gun shots at his [p]ostmaster’s empty parked car, damaging the windshield, dashboard and front seat.” Id. at 147. And there, as here, the employee was discharged for his off-duty conduct and the arbitrator reinstated the grievant. Ibid. Although the United States Court of Appeals for the Third Circuit declined to address the breadth of the public policy exception, id. at 150, Chief Judge Gibbons, writing for the court, remanded the matter for entry of an order enforcing the arbitrator’s award, id. at 150-51.

Id. at *10.

My flabber is gasted. I suppose it should have been long ago.

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