                                            In the
                          Missouri Court of Appeals
                                    Western District

                                                 
 INTERNATIONAL BROTHERHOOD                       
 OF ELECTRICAL WORKERS LOCAL                        WD82179
 UNION NO. 53,                                      OPINION FILED:
                           Respondent,           
                                                    September 3, 2019
 v.                                              
                                                 
 THE CITY OF INDEPENDENCE,                       
 MISSOURI,                                       
                                                 
                            Appellant.           
                                                 

                  Appeal from the Circuit Court of Jackson County, Missouri
                           The Honorable James F. Kanatzar, Judge

                                    Before Division Three:
      Gary D. Witt, Presiding Judge, Edward R. Ardini, and Thomas N. Chapman, Judges

         The City of Independence, Missouri (City) fired Ryan Saunders (Saunders) following a

workplace incident. The International Brotherhood of Electrical Workers Local Union No. 53

(Local 53) filed a grievance on Saunders’s behalf, and the grievance proceeded to arbitration in

the manner agreed upon in the parties’ collective bargaining agreement. The arbitrator reduced

Saunders’s punishment and conditionally reinstated his employment, subject to the arbitrator’s

continued supervision. Citing a provision in the parties’ collective bargaining agreement, the

City Manager set aside the arbitrator’s award. Local 53 sued for breach of the collective

bargaining agreement. The circuit court entered summary judgment in favor of Local 53, and
ordered the City to comply with the arbitrator’s award (but eliminated continued supervision by

the arbitrator). The City filed its timely appeal. We affirm.

                                      Procedural Summary

       Ryan Saunders (Saunders) had been employed by the City of Independence, Missouri

(City), since 2006, as an equipment operator. Saunders’s employment was governed by a

collective bargaining agreement (CBA) entered into between the City and The International

Brotherhood of Electrical Workers Local Union No. 53 (Local 53). On December 17, 2016,

Saunders directed inappropriate language at his supervisor; and was later discharged from his

employment as a result of his conduct on that date.

       Pursuant to the CBA, Local 53 filed a grievance protesting Saunders’s discharge, and the

matter proceeded through the grievance procedure to arbitration. The parties were represented

by counsel and presented testimony and other documentary evidence at the arbitration hearing.

In her award the arbitrator concluded that Saunders’s misconduct did not constitute “just cause”

for his discharge. The arbitrator’s award conditionally reinstated Saunders, required his

participation in an employee assistance program, and subjected the parties to the arbitrator’s

supervision to ensure that the terms of reinstatement were met.

        Under a provision of the CBA, the arbitrator’s award is subject to review by the City

Manager in certain limited circumstances. Relying upon the authority granted by this provision,

the City Manager rejected the arbitrator’s award and upheld the order terminating Saunders’s

employment. The City Manager found that the arbitrator’s award was contrary to the

overwhelming weight of the evidence and a “misinterpretation of the law.” The arbitration

proceedings were not transcribed, and the City Manager was not present for the entire arbitration



                                                 2
hearing.1 Local 53 filed suit in the Circuit Court of Jackson County, Missouri, alleging that the

City breached the CBA by rejecting the award of the arbitrator. The circuit court entered

summary judgment in favor of Local 53 and ordered the City to comply with the arbitration

award to conditionally reinstate Saunders; but found that the arbitrator was without authority to

supervise compliance with the award. The City appeals. We affirm.

                                                 Factual History

         At the time of his discharge, Saunders was working for the City as a heavy equipment

operator in the City’s Water Pollution Control Department, and had been employed by the City

since 2006. Saunders, along with other employees of the City's Water Pollution Control

Department, were allowed to elect to work additional hours as snow plow drivers for the City’s

Public Works Department. On December 17, 2016, Saunders was working as a snow removal

driver; and was involved in a motor vehicle accident when his truck slid on an icy road and

collided with a utility pole, downing attached power lines. Saunders called his supervisor to

advise him of the accident and to warn him that electrical lines were on the road. Saunders

stayed at the scene of the accident because he felt it was unsafe to leave with the power lines

strewn across the road.

         Saunders had some knowledge of the area where the accident occurred, as he had

previously been shot in the same neighborhood. While he was awaiting assistance from the City,

several men approached his vehicle. Saunders again called his supervisor and apparently stated



1
  As there is no transcript of the arbitration hearing, our recital of the facts is taken from the Summary Judgment
record, which includes the arbitrator’s award cited by both parties in their respective summary judgment motions.
There is nothing in the record that indicates whether or not the City Manager attended any portion of the arbitration
hearing. The arbitrator’s award notes who was present representing the City (its counsel) and does not note the
presence of the City Manager. At oral argument counsel for the City acknowledged that the City Manager did not
attend the entire arbitration hearing.

                                                          3
that “it would not be his fault if ‘things got physical.’” Saunders asked his supervisor for “back

up,” a request which his supervisor misunderstood to mean “traffic back-up.” Saunders then told

the men to return to their vehicles, but one of the men continued to approach; and in the course

of the ensuing confrontation, Saunders and the other man slipped and fell to the ground.

         While the supervisor had told Saunders that he was on his way to assist him with traffic

cones and road blocks, he experienced delays while addressing other traffic incidents and never

made it to the scene of Saunders’s accident. Angered by the City’s handling of the accident,

Saunders made statements to his supervisor that were disrespectful and profane, but none which

directly threatened violence toward his supervisor or anyone else.2 Several employees were

concerned that a physical confrontation might ensue. Saunders was then told he was “done for

the day” and was directed to leave the workplace. The City alleged that Saunders was notified

(via text message) to report for work the following day, and that he failed to appear. Saunders

denied ever receiving the alleged text message.3

         After an investigation by the City and two pre-disciplinary hearings, the City terminated

Saunders’s employment citing “insubordination, failure to perform assigned duties,

abuse/violence, acts detrimental to the public interest, fighting with a citizen, and leaving a City

vehicle unsecured” as reasons for his firing.

         The parties’ CBA provides that the City has the right to discharge its employees for “just

cause.” CBA, Art. 3, Section 3.2. The CBA further provides for a “grievance procedure” when



2
 During the verbal altercation with his supervisor, Saunders exclaimed that he was “done with this fucking place”
and “not coming back to this mother-fucking place.”
3
 In determining that the City did not have just cause for firing Saunders, the arbitrator observed that “without some
evidence that [Saunders] knew he was to report for snow removal, discharge for that alleged wrongdoing cannot be
sustained.”

                                                          4
Local 53 disagrees with the City’s “application or interpretation of the terms and provisions of

[the CBA].” CBA, Art. 15, Section 15.1. Following a multi-step appeals process, the grievance

proceeds to arbitration. The arbitrator’s award is subject to limited review by the City Manager

as follows:

        (f) Decisions of the arbitrator regarding [sic] shall be subject to review by the City
        Manager. Where the arbitrator's decision resolves issues of fact, the City Manager
        is not authorized to substitute his or her own judgment for the judgment of the
        arbitrator if the arbitrator's findings of fact are supported by competent and
        substantial evidence. The City Manager is authorized to reject the arbitrators [sic]
        decision only when the arbitrator's findings of fact and decision based thereon are
        clearly contrary to the overwhelming weight of the evidence viewed in its
        entirety, together with all legitimate inferences which may be reasonably drawn
        from that evidence, and in the light most favorable to the findings of fact and
        decision of the arbitrator based thereon. Where the arbitrator's decision is based
        upon an application or interpretation of law, the City Manager may review the
        award to determine if it is in violation of constitutional provisions; if it is for any
        reason unauthorized by law, or if it is made upon unlawful procedure without a
        fair hearing. The City Manager can exercise his or her own judgment on these
        matters after receiving advice from the City Counselor or an authorized designee.
        Notwithstanding any of the foregoing, the City Manager may reject the decision I
        [sic] of the arbitrator if such rejection results in a disposition more favorable to
        the bargaining unit member than the decision of the arbitrator.

CBA, Art. 15, Section 15.3, Step 4(B)(2)(f).

        In this matter, Local 53 filed a grievance contesting Saunders’s discharge, which

proceeded through the grievance procedure to arbitration. An evidentiary hearing was held, and

the arbitrator issued her award finding that the City did not have “just cause” to fire Saunders

and conditionally reinstating his employment (without back pay) subject to his successful

completion of an employee assistance program. Following his completion of the program, the

“conditional” element of his reinstatement was to be removed. The arbitrator also retained

jurisdiction over the dispute to ensure the parties’ compliance for a period not to exceed 120

days.


                                                  5
           In support of her award, the arbitrator found that there was insufficient evidence to

determine whether Saunders should have been faulted for engaging in a physical confrontation at

the scene of accident or whether he was merely defending himself.4 The arbitrator found that the

language Saunders directed at his supervisor was “disturbing” and not to be condoned.

Nevertheless, the arbitrator determined Saunders’s conduct warranted less severe discipline,

citing his long history of courteous behavior while working for the City, as well as supervisory

evaluations which described him as “above average” in his “working relationships and

cooperation.” The arbitrator also considered stressors in Saunders’s personal life as factors in

mitigation. Specifically, Saunders had noted in his 2014-2015 evaluation that he had been

required to use more sick leave than usual because his wife had been diagnosed with cancer.

Additionally, he expressed anxiety about his children at the arbitration hearing. In light of these

findings, the arbitrator concluded that Saunders should be allowed to return to work provided he

also underwent counseling so that he could learn to better respond to stressful events. 5

           Following the arbitrator’s decision, the City Manager rejected the award, asserting that it

was (1) contrary to the overwhelming weight of the evidence; (2) a misinterpretation of the law

in that the arbitrator “chose to fashion a remedy about which the City had no notice or

opportunity for hearing….”; and (3) a misinterpretation of the law in that the award allowed the

arbitrator “to substitute her judgment for that of the City on an on-going basis….”




4
 She further noted that arbitrators typically consider it important “[i]n addressing issues involving ‘fights’” to
determine which party initiated the encounter. Due to “the lack of any eye-witness or any other persuasive evidence
pertaining to the…precipitating cause” of the confrontation, the arbitrator found that this incident could not properly
serve as a reason for Saunders’s firing.
5
    Saunders was disciplined, however, in that he was reinstated to his former position without back pay.

                                                            6
         Local 53 filed a petition in the Jackson County Circuit Court for breach of contract,

seeking a judgment reinstating the arbitrator’s decision. The parties then filed cross motions for

summary judgment. The circuit court entered judgment in favor of Local 53, finding that it

could not conclude that the arbitrator’s award was contrary to the overwhelming weight of the

evidence (citing the lack of a transcript of the arbitration proceedings). The circuit court also

ruled that the arbitrator’s decision was authorized by law except to the extent that it granted her

continuing jurisdiction over the parties to monitor their compliance with her award.

         The City timely appeals.

                                                     Discussion

         Our review of a circuit court’s grant of summary judgment is essentially de novo. ITT

Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc

1993). Our task in this appeal is to determine whether the City Manager properly exercised his

authority to set aside the arbitrator’s decision pursuant to the CBA, or whether this action

breached the CBA. See Int'l Ass'n of Firefighters, Local Union No. 42 v. Jackson Cty., 524

S.W.3d 217, 223 (Mo. App. W.D. 2017).6

         At the heart of this case is the question of whether the City had “just cause” to fire

Saunders as “just cause” is a condition precedent to termination under the parties’ CBA. In

interpreting a collective bargaining agreement that permits discharge only for “just cause,” the



6
  Throughout this opinion we rely on the opinions in Int'l Ass'n of Firefighters, Local Union No. 42 v. Jackson Cty.,
524 S.W.3d 217 (Mo. App. W.D. 2017) and Int'l Ass'n of Fire Fighters, Local Union No. 42 v. Jackson Cty., 527
S.W.3d 103 (Mo. App. W.D. 2017) which addressed post-arbitration review of employee discipline pursuant to a
collective bargaining agreement. Because the caption of each case citation is identical, for clarification we will refer
to each opinion by the name of the employee involved in each case. Int'l Ass'n of Firefighters, Local Union No. 42
v. Jackson Cty., 524 S.W.3d 217 (Mo. App. W.D. 2017) will be referred to as ("Mitchell") and Int'l Ass'n of Fire
Fighters, Local Union No. 42 v. Jackson Cty., 527 S.W.3d 103 (Mo. App. W.D. 2017) will be referred to as
("Krantz").

                                                           7
Eastern District of this Court determined the following definition of “just cause” submitted in a

jury instruction to be an accurate statement of the law:

       [T]he term “just cause” means a real cause or basis for dismissal as distinguished
       from an arbitrary whim or caprice—that is, a cause or ground that a reasonable
       employer, acting in good faith under the collective bargaining agreement here in
       question, would regard as good and sufficient reason for terminating the services
       of an employee.

Roach v. Consol. Forwarding Co., 665 S.W.2d 675, 679 n.2 (Mo. App. E.D. 1984). “‘Just

cause’ in the context of collective bargaining agreements is a term of art which has developed its

meaning through labor arbitration hearings.” Id. at 680. This Court has recognized that an

employee’s misconduct may be sufficiently serious that it justifies “summary discharge” without

the need for progressive discipline; however, when the employee’s conduct is less egregious, a

less severe punishment is called for:

       Offenses are of two general classes: (1) those extremely serious offenses such as
       stealing, striking a foreman, persistent refusal to obey a legitimate order, etc.,
       which usually justify summary discharge without the necessity of prior warnings
       or attempts at corrective discipline; [and] (2) those less serious infractions of plant
       rules or of proper conduct such as tardiness, absence without permission, careless
       workmanship, insolence, etc., which call not for discharge for the first offense
       (and usually not even for the second or third offense) but for some milder penalty
       aimed at correction.

Mitchell, 524 S.W.3d at 225 (quoting Kenneth May, ELKOURI & ELKOURI: HOW ARBITRATION

WORKS § 15.3.F.i, at 15-44 to 15-45 (8th ed. 2016)).

       In its first point on appeal, the City argues that the City Manager was required by the

CBA to set aside the arbitrator’s award because (as the circuit court found) the arbitrator

exceeded her authority insofar as she sought to retain jurisdiction over the parties to monitor

their compliance. The City argues further that the City Manager has no authority but to comply

with the whole decision or reject the whole decision – in other words, that he had no right to


                                                 8
excise an unauthorized portion of the decision and to order compliance with the rest of it. Local

53 argues that this “all or nothing” approach is unsupported by the CBA and that the City

Manager should have simply stricken the offending portion of the award and ordered compliance

with the remainder.

       A collective bargaining agreement is simply a contract, “subject to the same rules of

interpretation as other contracts.” Allen v. Globe-Democrat Pub. Co., 368 S.W.2d 460, 463 (Mo.

1963). “The primary rule in the interpretation of a contract is to ascertain the intent of the parties

and to give effect to that intent.” Marshall v. Pyramid Dev. Corp., 855 S.W.2d 403, 406 (Mo.

App. W.D. 1993). In attempting to ascertain the parties’ intent, “we review the terms of a

contract as a whole, not in isolation.” Tuttle v. Muenks, 21 S.W.3d 6, 11 (Mo. App. W.D. 2000).

       The CBA authorizes the City Manager to reject the arbitrator’s award “only when the

arbitrator's findings of fact and decision based thereon are clearly contrary to the overwhelming

weight of the evidence viewed in its entirety….” In the next sentence, the CBA permits the City

Manager to review the arbitrator’s award (when it is based upon an application or interpretation

of law) to determine whether the award is in any way unauthorized by law. The CBA then

expressly allows the City Manager to exercise his own judgment on such matters. Nothing in

this clause requires the City Manager to reject the award in toto when any portion of it (no matter

how insignificant) is unauthorized by law. We will not insert a requirement in the CBA which is

not there. Allen, 368 S.W.2d at 467 (“In interpreting a collective bargaining agreement we must

construe them as written, not as we may think they should have been written, and certainly not

by interpolating words in them which are not there.”). Instead, this Court must give the words

used by the parties in the CBA “their natural and ordinary meaning,” and we are not permitted to



                                                  9
“add provisions by judicial interpretation.” Goodman v. Goodman, 576 S.W.2d 747, 749 (Mo.

App. E.D. 1979).

         Furthermore, adopting the interpretation advocated by the City would violate the plain

terms of the CBA. The parties’ contract indicates that Local 53 members may only be

discharged for “just cause.” In the instant case, the arbitrator heard testimony from Saunders, his

supervisor, and other City employees; examined his relevant employment history, including a

prior disciplinary incident7 and supervisory reviews praising his courtesy and cooperation;

considered significant stressors in his personal life as factors in mitigation; and ultimately

concluded that the City did not have “just cause” to fire him. The City’s interpretation of the

CBA would allow the City Manager to ignore this determination and reject the arbitrator’s

decision based upon a peripheral aspect of the award that has nothing to do with whether the City

had “just cause” to fire Saunders. Accepting this argument would mean that the City could reject

the entire award based upon a technicality and reinstate its termination of an employee without

demonstrating that the employee had been fired for “just cause.” This contravenes the plain

language of the CBA (which only allows the City to terminate an employee with “just cause”)

and produces an absurd result. Wildflower Cmty. Ass'n, Inc. v. Rinderknecht, 25 S.W.3d 530,

536 (Mo. App. W.D. 2000) (an appellate court endeavors to avoid an absurd outcome when

interpreting a contract).

         The City Manager is permitted by the CBA to exercise his own judgment as to any

unauthorized portion of an arbitrator’s award. Implicit in this authorization is the obligation that



7
  We are not provided any details regarding this disciplinary action, other than it occurred in January 2016, it arose
from an incident of insubordination (involving the same supervisor as the December 17, 2016, incident), and
Saunders was “contrite and deferential” in its aftermath.

                                                          10
he exercise such judgment in good faith and not in a way that undermines the spirit of the CBA.

Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo. App. W.D. 1986) (the implied

covenant of good faith “prevents one party to the contract to exercise a judgment conferred by

the express terms of agreement in such a manner as to evade the spirit of the transaction or so as

to deny the other party the expected benefit of the contract.”). In this case, good faith required

the City Manager to excise the section of the arbitrator’s award that exceeded her powers and

uphold her central determination that the City lacked “just cause” to fire Saunders.

       Point I is denied.

       In its second point, the City argues that the arbitrator’s decision was contrary to the

overwhelming weight of the evidence and made without a fair hearing. The arbitrator found that

the City did not have “just cause” to fire Saunders. We afford a “high degree of deference” to

the arbitrator’s determination on this point. See Behnen v. A.G. Edwards & Sons, Inc., 285

S.W.3d 777, 780 (Mo. App. E.D. 2009).

       In ruling on the parties’ competing motions for summary judgment, the circuit court

noted that it was “severely limited in its review of the evidence because a transcript of the

arbitration hearing was never presented to the Court.” At oral argument, counsel for the City

confirmed that a transcript of the arbitration hearing was not provided to the City Manager

(because none was made) and that the City Manager did not attend the entire hearing. The CBA

allows the City Manager:

       to reject the arbitrators [sic] decision only when the arbitrator's findings of fact
       and decision based thereon are clearly contrary to the overwhelming weight of the
       evidence viewed in its entirety, together with all legitimate inferences which may
       be reasonably drawn from that evidence, and in the light most favorable to the
       findings of fact and decision of the arbitrator based thereon.

CBA, Art. 15, Section 15.3, Step 4(B)(2)(f) (emphasis added).

                                                 11
         In support of its argument, the City cites Mitchell and Krantz. In those cases, the parties’

collective bargaining agreement similarly allowed for modification of the arbitrator’s decision by

the county prosecutor and county executive when the decision was found to be “clearly contrary

to the weight of the evidence, viewed in its entirety[.]” Mitchell, 524 S.W.3d at 223; Krantz, 527

S.W.3d at 112. In both cases, we upheld the county prosecutor and county executive’s joint

decision to modify the arbitrator’s awards and reinstate termination of two assistant prosecutors.

Mitchell, 524 S.W.3d at 228; Krantz, 527 S.W.3d at 116. However, in those cases a transcript

was made of the arbitration hearing, the transcript was provided to the county prosecutor and

county executive (the parties authorized to review the arbitrator’s award), and the arbitration

transcript was relied upon extensively by the county prosecutor and executive8 in setting aside

the arbitrator’s awards.9

         In this case, because the City Manager was not present for the entire arbitration hearing

and did not have a transcript of the hearing, he was precluded from viewing the evidence in its

entirety. Under the plain terms of the CBA, he could not possibly determine whether the award

was clearly contrary to the overwhelming weight of the evidence since he did not even have a

record of the arbitration hearing (much less the entire evidentiary record). In re K.S., 404

S.W.3d 900, 901 (Mo. App. E.D. 2013) (a transcript of the relevant proceedings is necessary to




8
  In Mitchell, the county prosecutor and executive issued an 81-page modification of the arbitrator’s decision.
 524 S.W.3d at 223. In Krantz, the modification decision was 57 pages in length. 527 S.W.3d at 112. It is
noteworthy that in the present case, the City Manager’s letter rejecting the arbitrator’s award barely exceeded a
single page. The terse and conclusory nature of the City Manager’s letter underscores the lack of evidentiary
support for his decision.
9
  We glean these facts from the records on appeal contained in Mitchell and Krantz. We take judicial notice of the
legal files in those cases. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App. E.D. 2005) (“A court may take judicial
notice of its own records and may take judicial notice of the records of other cases when justice so requires.”).


                                                         12
adjudicate whether a judgment is “contrary to the weight of the evidence.”). Absent an ability to

view the entire record in order to adjudge the arbitrator’s findings, the City Manager was not

authorized under the CBA to reject the arbitrator’s award as being clearly contrary to the

overwhelming weight of the evidence.10

         Under its second point, the City also argues that the arbitrator’s award conditionally

reinstating Saunders’s employment was entered without a fair hearing. Specifically, the City

contends the arbitrator “exceeded the evidence” by reinstating Saunders’s employment

conditioned upon his completion of a remedial counseling program because this outcome “was

neither presented nor requested by either party.” This argument echoes one of the City

Manager’s justifications for setting aside the award, in which he complained that the arbitrator

“chose to fashion a remedy about which the City had no notice or opportunity for hearing to

contribute to a discussion as to the feasibility of the remedy.” Again, because the City Manager

did not have a transcript of the arbitration hearing and was not present for the entire hearing, the




10
   We also lack a sufficient record to determine whether the arbitrator’s factual findings were clearly contrary to the
overwhelming weight of the evidence. We observe ex gratia, that if we accept as true the arbitrator’s factual
findings and the other uncontroverted facts in the summary judgment record, after excising the provision for
continued supervision by the arbitrator, the arbitrator’s award conditionally reinstating Saunders was not otherwise
unauthorized by law. The City attempts to analogize the facts of the present matter to those at issue in Mitchell and
Krantz. However, Mitchell and Krantz are clearly distinguishable. Both cases involved the discharge of prosecutors
for violations of the Missouri Supreme Court Rules of Professional Conduct, including lying to the tribunal, which
we described as being “among the most serious acts of professional misconduct an attorney can commit” made
worse because the prosecutor’s office “wield[s] enormous power over the life and liberty of other persons.”
Mitchell, 524 S.W.3d at 221, 227; Krantz, 527 S.W.3d at 109-10, 113-14. We observed that the attorneys’
infractions justified summary dismissal without the need for progressive discipline or prior warnings. Mitchell, 524
S.W.3d at 227; Krantz, 527 S.W.3d at 115. Saunders’s insolence directed toward his supervisor certainly was
misconduct that, in combination with other misconduct, and in the absence of mitigating factors, could have
constituted “just cause” for his discharge. However, in light of the mitigating factors noted by the arbitrator
(including Saunders’s long work history of interacting well with his coworkers), his misconduct was not the sort of
egregious misconduct (as in Krantz and Mitchell) that necessarily constituted “just cause” requiring discharge.


                                                          13
City Manager lacked the ability to determine whether the hearing was unfair, and therefore

lacked authority under the CBA to reject the arbitrator’s award on that basis.11

         Point II is denied.12

                                                   Conclusion

         The judgment of the circuit court is affirmed.



                                                               /s/   Thomas N. Chapman
                                                               Thomas N. Chapman, Judge


All concur.




11
  To be clear, were the Court to address the City’s argument concerning the fairness of the hearing on the merits, it
would find the argument unpersuasive. The parties’ CBA gives the arbitrator discretion to reduce the discipline
imposed by the City, which is exactly what the arbitrator did. CBA, Art. 15, Section 15.3, Step 4(B)(2)(e). Pursuant
to the plain language of the parties’ contract, the City cannot reasonably argue that it was surprised by the
arbitrator’s decision to impose a less severe form of discipline.
12
  The City stresses the administrative difficulties involved in monitoring Saunders’s progress in the employee
assistance program, specifically noting that records from the program are confidential. However, the City’s policies
and procedures manual states that a participant in the program may consent to the release of records kept by the
program administrator. The arbitrator’s award provides that Saunders’s employment is conditioned on his
participation in (and completion of) the program. Saunders is therefore required, as a condition of his employment,
to apprise the City of his participation in the program. Saunders’s consent to release of records would be a means to
apprise the City of his participation in (and completion of) the program.

                                                         14
