Grievant was employed by the Minnesota Association of Professional Employees, the Union representing state employees, as a business agent. She was also a member of OPEIU Local 12, the Union representing the MAPE staff. OPEIU and MAPE were engaged in negotiations for a new collective bargaining agreement. After MAPE declared an impasse in negotiations, OPEIU filed both a grievance and an unfair labor practice charge. MAPE sought advice from outside counsel who sent a letter outlining a legal analysis and recommended responses to the grievance and charge. A receptionist opened the letter, realized it related to the OPEIU negotiations and showed it to another OPEIU member. That member in turn made a copy and provided it to the grievant. Grievant proved the copy to the OPEIU shop steward. The steward gave the letter to the OPEIU business agent and it was discussed at a union meeting.
MAPE learned of the incident and conducted an investigation. As a result of the findings, three of the four individuals who had transmitted copies of the letter resigned. Grievant declined to resign and her employment was terminated.
OPEIU grieved the termination and Arbitrator Richard Beens rejected the grievance. Arbitrator Beens concluded that even in the absence of a written rule, grievant knew it was wrong to possess and pass on the legal opinion. He observed "It is entirely reasonable for any employer to expect employees to be honest and trustworthy. It is equally reasonable to believe all employees have a universal understanding of this simple expectation." Rejecting the claim that the discipline was unduly harsh, Arbitrator Beens found that the misconduct went to the heart of the employer-employee relationship and was a serious violation of the level of trust expected of the grievant.
The Arbitrator also rejected reliance on grievant's 17 year work record as a basis for mitigation, noting:
A seventeen-year spotless work record would ordinarily carry great weight when considering levels of discipline. There is no doubt Grievant was a highly valued employee who previously did excellent work for the Employer. On the other hand, vast experience can also cut the other way. Based on her seventeen years as a business agent, contract negotiator, and grievance advocate, Grievant was in the best position to recognize the magnitude of the misconduct. Grievant’s assertions that she, “just wasn’t thinking because she was so busy,” ring hollow. The ultimate test of character is doing the right thing even when you believe no one is looking. In this instance, Grievant failed that test.
Pursuant to the parties' cba, the Arbitrator found the conduct of the grievant amounted to "gross misconduct", justifying the termination notwithstanding the absence of progressive discipline.
Arbitrator Beens award can be found here.
Sunday, May 19, 2013
Sunday, May 12, 2013
NLRB Defers to Arbitrator's award despite limited remedy
NLRB Acting General Counsel Lafe Solomon has announced his intent to ask the Board to revise its standards for deferring to arbitrators' awards in cases alleging unlawful discrimination because of an employee's union or other protected concerted activity. Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) cases. While the Board has not yet ruled on that request, it has recently reaffirmed its decision to defer unless the arbitrator's award is "clearly repugnant" to the Act.
Sheds Jacksonville Medical Center, Inc. involved a claim that the employer had unlawfully dismissed an employee because of her activity on behalf of the Union representing the Center's employees. The employee had been dismissed after the employer concluded that she had distributed a Union flyer on work time and in work areas. The employer claimed that the flyer called for an unauthorized work stoppage. An unfair labor practice charge was filed but the processing of the charge was deferred to the grievance/arbitration procedures. The Union grieved the dismissal, and Arbitrator Richard Potter concluded that while the employee had distributed the flyer on duty time and in a work area as alleged, the Medical Center's enforcement of its no distribution policy was lax, the flyer did not call for a job action, and that the activity was brief and casual and did not require her to sign out for Union duties. However, because he concluded that the employee had lied about the distribution, both during the Medical Center's investigation and at the hearing he ordered her reinstated without back pay.
The Acting General Counsel issued a complaint on the ulp charge and asserted that the deferral to the arbitrator's award was unwarranted. The ALJ disagreed and dismissed that portion of the complaint. On appeal, the Board affirmed the ALJ's decision.The Board expressly declined to consider the Acting General Counsel's request to modify it deferral standards at this time. Applying its traditional standard, it noted that the proceeding was fair and regular, that the parties had agreed to be bound, and that the issue before the Arbitrator was factually parallel to that in the ULP proceeding. The only remaining question was whether the award was "clearly repugnant" to the Act. Addressing the issue of the Arbitrator's decision not to award back pay, the Board observed:
As a general matter, the mere fact that an arbitration award is not coextensive with the Board’s usual remedies does not, without more, make the award clearly repugnant to the Act. ... More specifically, an award that reinstates an employee without full backpay and accrued benefits is not necessarily inconsistent with the Act. Indeed, the Board itself has, at times, decided not to grant those
remedies where doing so would not effectuate the policies of the Act.
The Board noted that while the employee's lie during the employer's investigation might arguably be protected, a lie during the arbitration hearing clearly was not. It concluded:
In making the latter observation, we are mindful that the arbitrator did not state whether he would have denied Palmer backpay based only on her lie at the arbitration hearing, and, from the record before us, it is not possible to say definitively that the arbitrator denied Palmer backpay for conduct at the hearing that was completely unrelated to her arguably protected conduct. Our established policy, however, is to defer to arbitration decisions unless they are “not susceptible to an interpretation consistent with the Act.” Olin, 268 NLRB at 574. Because the arbitrator’s award can be interpreted in a way consistent with the Act (i.e., that backpay was denied because Palmer lied under oath), we find that the arbitrator’s denial of backpay and credit for time lost does not make the award repugnant to the Act. [footnote omitted].
The Board left for another day a decision on the Acting General Counsel's request to modify its deferral procedures.
Sheds Jacksonville Medical Center, Inc. involved a claim that the employer had unlawfully dismissed an employee because of her activity on behalf of the Union representing the Center's employees. The employee had been dismissed after the employer concluded that she had distributed a Union flyer on work time and in work areas. The employer claimed that the flyer called for an unauthorized work stoppage. An unfair labor practice charge was filed but the processing of the charge was deferred to the grievance/arbitration procedures. The Union grieved the dismissal, and Arbitrator Richard Potter concluded that while the employee had distributed the flyer on duty time and in a work area as alleged, the Medical Center's enforcement of its no distribution policy was lax, the flyer did not call for a job action, and that the activity was brief and casual and did not require her to sign out for Union duties. However, because he concluded that the employee had lied about the distribution, both during the Medical Center's investigation and at the hearing he ordered her reinstated without back pay.
The Acting General Counsel issued a complaint on the ulp charge and asserted that the deferral to the arbitrator's award was unwarranted. The ALJ disagreed and dismissed that portion of the complaint. On appeal, the Board affirmed the ALJ's decision.The Board expressly declined to consider the Acting General Counsel's request to modify it deferral standards at this time. Applying its traditional standard, it noted that the proceeding was fair and regular, that the parties had agreed to be bound, and that the issue before the Arbitrator was factually parallel to that in the ULP proceeding. The only remaining question was whether the award was "clearly repugnant" to the Act. Addressing the issue of the Arbitrator's decision not to award back pay, the Board observed:
As a general matter, the mere fact that an arbitration award is not coextensive with the Board’s usual remedies does not, without more, make the award clearly repugnant to the Act. ... More specifically, an award that reinstates an employee without full backpay and accrued benefits is not necessarily inconsistent with the Act. Indeed, the Board itself has, at times, decided not to grant those
remedies where doing so would not effectuate the policies of the Act.
The Board noted that while the employee's lie during the employer's investigation might arguably be protected, a lie during the arbitration hearing clearly was not. It concluded:
In making the latter observation, we are mindful that the arbitrator did not state whether he would have denied Palmer backpay based only on her lie at the arbitration hearing, and, from the record before us, it is not possible to say definitively that the arbitrator denied Palmer backpay for conduct at the hearing that was completely unrelated to her arguably protected conduct. Our established policy, however, is to defer to arbitration decisions unless they are “not susceptible to an interpretation consistent with the Act.” Olin, 268 NLRB at 574. Because the arbitrator’s award can be interpreted in a way consistent with the Act (i.e., that backpay was denied because Palmer lied under oath), we find that the arbitrator’s denial of backpay and credit for time lost does not make the award repugnant to the Act. [footnote omitted].
The Board left for another day a decision on the Acting General Counsel's request to modify its deferral procedures.
Sunday, May 5, 2013
Mayor improperly interfered with discipline of Fire Captain
Arbitrator Mark Lurie has issued a decision sustaining a grievance filed by a Fire Captain over his demotion to firefighter. Miami-Dade Fire Captain Brian Beckmann authored a Facebook post concerning the Trayvon Martin case. The post was controversial and he was demoted as a result of it. Miami-Dade Fire Captain Demoted Over Trayvon Martin Post Fights For Old Job.
At the arbitration hearing contesting the demotion, the Fire Chief testified that he had initially determined that a 14 day suspension was an appropriate penalty. However before the discipline was imposed he received a call from the Mayor's office, communicating the Mayor's belief that Beckmann's employment should be terminated. In subsequent conversations, the Mayor and the Fire Chief agreed that Beckmann would be demoted to the position of firefighter. The Chief testified that he did not believe he had the authority to go against the Mayor's wishes.
The Union (IAFF Local 1403) challenged this decision. They argued that the County Administrative Orders, incorporated into the cba, vested the disciplinary decision in the Chief alone and that the Chief's decision was improperly countermanded by the Mayor. Agreeing with the Union, Arbitrator Lurie overturned the demotion, concluding:
In sum, Chief Bryson testified that he had decided to suspend Mr. Beckmann but that Mayor Gimenez instructed him to issue either a discharge or demotion, and that he – Bryson – demoted Mr. Beckmann because he believed that, if he were to do otherwise, he would be fired or have to resign. Asked whether he had “objectively determined” that demotion was appropriate, Chief Bryson conspicuously evaded answering the question; he instead testified “I signed the letter.” Mayor Gimenez did not testify that the decision to demote Mr. Beckmann had been solely Captain Bryson’s, and reiterated that he – Mayor Gimenez – possessed the authority to have made the demotion decision himself. The only testimony in which Mayor Gimenez attributed the demotion decision to Captain Bryson was his statement that, “…we agreed on what the appropriate level should be.” Again, A.O 7-16 states that “Approval of the dismissal or demotion of an employee shall continue to be exercised only by a Department Director.”
The Arbitrator finds the testimony of both Mayor Gimenez and Chief Bryson to have been truthful and credible. Based upon their testimony, the Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent for A.O. 7-3 and A.O. 7-16.
The Arbitrator instead determined that Beckman should serve the 14 day suspension initially determined by the Chief to be appropriate.
Noting the significant public interest in the case, the Arbitrator observed:
... there was substantial public attendance at each day of the arbitration hearing. Most of those present were there to see justice done. The Arbitrator has neither the responsibility nor the authority to do justice. Nor was he engaged for that purpose. His role is to apply the terms of the collective bargaining agreement. Were he to stray from that role in pursuit of justice, the victory would be short-lived; his decision would be overturned by the first reviewing court.
Fire Law blog reports on the case here, and links to the Arbitrator's award here.
At the arbitration hearing contesting the demotion, the Fire Chief testified that he had initially determined that a 14 day suspension was an appropriate penalty. However before the discipline was imposed he received a call from the Mayor's office, communicating the Mayor's belief that Beckmann's employment should be terminated. In subsequent conversations, the Mayor and the Fire Chief agreed that Beckmann would be demoted to the position of firefighter. The Chief testified that he did not believe he had the authority to go against the Mayor's wishes.
The Union (IAFF Local 1403) challenged this decision. They argued that the County Administrative Orders, incorporated into the cba, vested the disciplinary decision in the Chief alone and that the Chief's decision was improperly countermanded by the Mayor. Agreeing with the Union, Arbitrator Lurie overturned the demotion, concluding:
In sum, Chief Bryson testified that he had decided to suspend Mr. Beckmann but that Mayor Gimenez instructed him to issue either a discharge or demotion, and that he – Bryson – demoted Mr. Beckmann because he believed that, if he were to do otherwise, he would be fired or have to resign. Asked whether he had “objectively determined” that demotion was appropriate, Chief Bryson conspicuously evaded answering the question; he instead testified “I signed the letter.” Mayor Gimenez did not testify that the decision to demote Mr. Beckmann had been solely Captain Bryson’s, and reiterated that he – Mayor Gimenez – possessed the authority to have made the demotion decision himself. The only testimony in which Mayor Gimenez attributed the demotion decision to Captain Bryson was his statement that, “…we agreed on what the appropriate level should be.” Again, A.O 7-16 states that “Approval of the dismissal or demotion of an employee shall continue to be exercised only by a Department Director.”
The Arbitrator finds the testimony of both Mayor Gimenez and Chief Bryson to have been truthful and credible. Based upon their testimony, the Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent for A.O. 7-3 and A.O. 7-16.
The Arbitrator instead determined that Beckman should serve the 14 day suspension initially determined by the Chief to be appropriate.
Noting the significant public interest in the case, the Arbitrator observed:
... there was substantial public attendance at each day of the arbitration hearing. Most of those present were there to see justice done. The Arbitrator has neither the responsibility nor the authority to do justice. Nor was he engaged for that purpose. His role is to apply the terms of the collective bargaining agreement. Were he to stray from that role in pursuit of justice, the victory would be short-lived; his decision would be overturned by the first reviewing court.
Fire Law blog reports on the case here, and links to the Arbitrator's award here.
Sunday, April 28, 2013
CT court: Public policy compels termination of nursing home employee, arbitrator's award overturned
A Connecticut appeals court has reversed a lower court and has set aside an award reinstating a certified nurse assistant in a nursing home who had been dismissed for failing to timely report suspicion of abuse.
Grievant overheard a conversation between two other employees which she believed related to possible patient abuse. The other employees declined to and peak with her about this, and she attempted on her own to investigate the issue. Unsuccessful in her first attempt, Grievant, a couple of nights later, spoke with a patient who she believed had been the subject of the overheard conversation. Grievant went home and left a voice mail message for the facility's social worker reporting what she had learned and urging the social worker to contact the patient directly.
The facility subsequently conducted an investigation of the claim of abuse, and ultimately disciplined (with suspensions and final warnings) several employees who had either been involved in the incident or had failed to report it. It terminated the employment of Grievant, noting that she had two prior final warnings in her file
.
The Union (New England Health Care Employees Union, District 1199) grieved the termination and an arbitrator reduced the discipline to a 30 day suspension. The arbitrator agreed that there was a strong public policy protecting nursing home residents and that that policy included an obligation to promptly report patient abuse. Nevertheless he concluded that there were mitigating factors, including the fact that Grievant was the only employee who reported the incident (albeit in an untimely manner) and the concern that terminating an employee who did report, even if late, would create a disincentive to reporting.
The employer sought unsuccessfully to vacate the award as contrary to public policy. The appellate court reversed, concluding:
The award, requiring the reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her prior record of related disciplinary actions and two prior final warnings demonstrated her inability to meet the demands of the public policy of protection and reporting, violates that policy because, in the very words of the arbitrator, ‘‘any delay in reporting by a staff member leaves the residents at risk of possible further abuse by the alleged perpetrator; corrective action by [the plaintiff] to assure resident well-being inevitably is delayed if reporting by staff is delayed.’’
While noting that it was not holding that a single incident of patient abuse necessarily compelled termination, the Court noted that "because of a confluence of factors arising under the facts and circumstances of this case" the award mandating reinstatement violated public policy.
The dissent maintained that the majority's opinion exceeded the appropriated scope of review and failed to give appropriate weight to the arbitrator's conclusion. The dissent noted:
The majority’s general invocation of the public policy relating to protection of patients from abuse ... has the unfortunate result of diminishing this court’s respect for and deference to the private arbitration process, and it also results in an expansion of the public policy exception from its intended narrow application in these circumstances. Taken to its logical conclusion, the majority sets forth a rule that requires an employer to terminate the employment of any employee who does not report a suspicion of elder abuse immediately, without consideration of any mitigating factors or whether the employer itself would be in violation of any public policy. ... I thus conclude that the broad expansion of this narrow exception is unwarranted, and not in the interest of employers or employees in this health care sector.
Grievant overheard a conversation between two other employees which she believed related to possible patient abuse. The other employees declined to and peak with her about this, and she attempted on her own to investigate the issue. Unsuccessful in her first attempt, Grievant, a couple of nights later, spoke with a patient who she believed had been the subject of the overheard conversation. Grievant went home and left a voice mail message for the facility's social worker reporting what she had learned and urging the social worker to contact the patient directly.
The facility subsequently conducted an investigation of the claim of abuse, and ultimately disciplined (with suspensions and final warnings) several employees who had either been involved in the incident or had failed to report it. It terminated the employment of Grievant, noting that she had two prior final warnings in her file
.
The Union (New England Health Care Employees Union, District 1199) grieved the termination and an arbitrator reduced the discipline to a 30 day suspension. The arbitrator agreed that there was a strong public policy protecting nursing home residents and that that policy included an obligation to promptly report patient abuse. Nevertheless he concluded that there were mitigating factors, including the fact that Grievant was the only employee who reported the incident (albeit in an untimely manner) and the concern that terminating an employee who did report, even if late, would create a disincentive to reporting.
The employer sought unsuccessfully to vacate the award as contrary to public policy. The appellate court reversed, concluding:
The award, requiring the reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her prior record of related disciplinary actions and two prior final warnings demonstrated her inability to meet the demands of the public policy of protection and reporting, violates that policy because, in the very words of the arbitrator, ‘‘any delay in reporting by a staff member leaves the residents at risk of possible further abuse by the alleged perpetrator; corrective action by [the plaintiff] to assure resident well-being inevitably is delayed if reporting by staff is delayed.’’
While noting that it was not holding that a single incident of patient abuse necessarily compelled termination, the Court noted that "because of a confluence of factors arising under the facts and circumstances of this case" the award mandating reinstatement violated public policy.
The dissent maintained that the majority's opinion exceeded the appropriated scope of review and failed to give appropriate weight to the arbitrator's conclusion. The dissent noted:
The majority’s general invocation of the public policy relating to protection of patients from abuse ... has the unfortunate result of diminishing this court’s respect for and deference to the private arbitration process, and it also results in an expansion of the public policy exception from its intended narrow application in these circumstances. Taken to its logical conclusion, the majority sets forth a rule that requires an employer to terminate the employment of any employee who does not report a suspicion of elder abuse immediately, without consideration of any mitigating factors or whether the employer itself would be in violation of any public policy. ... I thus conclude that the broad expansion of this narrow exception is unwarranted, and not in the interest of employers or employees in this health care sector.
Sunday, April 21, 2013
Police discipline and Public Policy
Portland, OR police officer Ron Frashour was dismissed following his involvement in a fatal shooting of an individual who turned out to be unarmed. The City claimed that he had used excessive and unnecessary force in violation of the City's deadly force policies. Arbitrator Jane Wilkinson, in an award discussed here, upheld a grievance filed on his behalf and ordered him reinstated. Arbitrator Wilkinson concluded that Officer Frashour did not act unreasonably under the circumstances, and that there was no evidence that he had violated any City policy.
The award prompted controversy, Crowd protests arbitrator's decision to re-hire cop, and the City announced it would not comply with the award. The City maintained that the award was inconsistent with an Oregon statute providing "any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions....
In response to a charge filed by the Portland Police Association, the Oregon Employment Relations Board found that the City had committed an unfair labor practice by refusing to comply with the award. It rejected the City's public policy argument, noting that Arbitrator Wilkinson had found as a fact that Officer Frashour had not engaged in misconduct.
The City has now appealed that decision and briefs have been filed in the dispute. Portland Mercury: Police Union Answers City in Appeal over Frashour reinstatement. The City maintains that the Arbitrator improperly failed to give deference to the City's conclusion that its policies were violated.
The City argues in its appeal:
The award prompted controversy, Crowd protests arbitrator's decision to re-hire cop, and the City announced it would not comply with the award. The City maintained that the award was inconsistent with an Oregon statute providing "any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions....
In response to a charge filed by the Portland Police Association, the Oregon Employment Relations Board found that the City had committed an unfair labor practice by refusing to comply with the award. It rejected the City's public policy argument, noting that Arbitrator Wilkinson had found as a fact that Officer Frashour had not engaged in misconduct.
The City has now appealed that decision and briefs have been filed in the dispute. Portland Mercury: Police Union Answers City in Appeal over Frashour reinstatement. The City maintains that the Arbitrator improperly failed to give deference to the City's conclusion that its policies were violated.
The City argues in its appeal:
ERB erroneously began and ended its inquiry with the
Arbitrator's finding that Officer Frashour did not engage in misconduct. It was
the Arbitrator's refusal to afford deference to the determination of the Chief
of Police that Officer Frashour's killing of an unarmed, non-resisting, emotionally
distraught man, on whose welfare the police were trying to check, violated the
City's deadly force policies, that failed to comply with public policy
requirements. In other words, it was not so much what the Arbitrator decided, but rather how she decided it that violated public policy.
In its reply, the Portland Police Association argues:
The City suggests that if the Arbitrator agrees with the City's conclusion that Officer Frashour violated City use of force policies, then the Arbitrator's award is consistent with public policy. But if the Arbitrator disagrees with the City and holds that Officer Frashour did not violate any City policy, then her award violates public policy because she did not defer to the City's decision. In other words, the City argues that it can make an incorrect disciplinary decision, one that might be motivated by political concerns or driven by an inadequate investigation, and that its decision must be upheld by an arbitrator.
The City suggests that if the Arbitrator agrees with the City's conclusion that Officer Frashour violated City use of force policies, then the Arbitrator's award is consistent with public policy. But if the Arbitrator disagrees with the City and holds that Officer Frashour did not violate any City policy, then her award violates public policy because she did not defer to the City's decision. In other words, the City argues that it can make an incorrect disciplinary decision, one that might be motivated by political concerns or driven by an inadequate investigation, and that its decision must be upheld by an arbitrator.
Professor Henry Drummonds has written an article discussing the public policy exception to enforcement of arbitration awards. That article is discussed here.
Saturday, April 13, 2013
Award reinstating police officer without License to Carry weapon confirmed
As noted in an earlier post, Arbitrator Phillip Dunn upheld the termination of a police officer who lost his license to carry a weapon. Police officer who lost license to carry weapon properly terminated. According to a report in the Worcester Telegram, a Massachusetts Superior Court has recently confirmed an arbitrator's award reinstating an officer who had apparently similarly been denied renewal of a license to carry. Ruling backs former Worcester officer accused of pointing gun at teens.
According to the report, the judge concluded:
[T]he arbitrator found that the city did not have just cause to terminate [the officer] because he did not have a license to carry a firearm ...The arbitrator noted that the city had not shown that possession of a license to carry a firearm was a necessary job requirement for a Worcester police officer. The arbitrator further found that even if possession of a license to carry a firearm was a requirement of the job, the officer could waive such a requirement, and he had done so in the past.
The officer had been terminated for allegedly pointing a handgun at three teenagers in his neighborhood while off duty. During the investigation of that incident his license to carry expired and the Police Chief declined to renew it.
Arbitrator Richard Higgins overturned that earlier termination, and the Massachusetts Appeals Court recently rejected the City's claim that the award violated public policy. O'Brien v. New England Police Benevolent Association, Local 911.
New England PBA links to Arbitrator Richard Higgins' award here. The Daily Worcesteria links to the award of Arbitrator Roberta Golick on the LTC issue here.
According to the report, the judge concluded:
[T]he arbitrator found that the city did not have just cause to terminate [the officer] because he did not have a license to carry a firearm ...The arbitrator noted that the city had not shown that possession of a license to carry a firearm was a necessary job requirement for a Worcester police officer. The arbitrator further found that even if possession of a license to carry a firearm was a requirement of the job, the officer could waive such a requirement, and he had done so in the past.
The officer had been terminated for allegedly pointing a handgun at three teenagers in his neighborhood while off duty. During the investigation of that incident his license to carry expired and the Police Chief declined to renew it.
Arbitrator Richard Higgins overturned that earlier termination, and the Massachusetts Appeals Court recently rejected the City's claim that the award violated public policy. O'Brien v. New England Police Benevolent Association, Local 911.
New England PBA links to Arbitrator Richard Higgins' award here. The Daily Worcesteria links to the award of Arbitrator Roberta Golick on the LTC issue here.
Sunday, April 7, 2013
Eighth Circuit rejects award finding just cause but awarding remedy.
A majority of the Eight Circuit has affirmed a District Court's decision vacating an arbitrator's award, concluding that he had found that the employer had just cause for the termination of the grievant but nevertheless reinstated him without back pay. Northern States Power Co. d/b/a Xcel Energy v. IBEW, Local 160.
The Company had terminated the employment of grievant after learning through a background check that he had been convicted of "possession of a pornographic work involving a minor." The terms of grievant's probation included a prohibition on contact with minors. The Company maintained that they could not guarantee that grievant would have no contact with minors during his employment and, as a result, terminated his employment.
The Arbitrator concluded:
[T]he Local’s grievance is denied in part and sustained in part. To the extent that Mr. Snow was convicted of a serious crime that raises some very legitimate concerns on the part of the Management going forward, they have demonstrated justification for their decision. At the same time however, the Union has presented convincing evidence which sets forth a number of factors that existed which ultimately favor the imposition of a penalty less than the Grievant's dismissal.
The Company sought to set aside the award, and the District Court granted the employer's motion. The Eight Circuit affirmed, observing:
Here, the language of the arbitrator’s decision—specifically that NSP had “demonstrated justification” for its decision to terminate Snow—is sufficient to show that the arbitrator found the termination was supported by “just cause.” Having answered the first submitted question in the affirmative, the arbitrator had no authority to address the second question or to fashion a remedy different than the termination. Therefore, the district court properly vacated the arbitrator’s award for reaching beyond his authority under the CBA.
In reaching this conclusion, the Court noted with approval decisions from other circuits, including the Fifth Circuit's "implied just cause" cases (discussed here), holding that having found just cause an arbitrator was without authority to reduce the penalty.
The dissenting opinion argued that the arbitrator had made no finding of just cause, and that when read in context the arbitrator's award "cannot fairly be read to favor NSP".
The Company had terminated the employment of grievant after learning through a background check that he had been convicted of "possession of a pornographic work involving a minor." The terms of grievant's probation included a prohibition on contact with minors. The Company maintained that they could not guarantee that grievant would have no contact with minors during his employment and, as a result, terminated his employment.
The Arbitrator concluded:
[T]he Local’s grievance is denied in part and sustained in part. To the extent that Mr. Snow was convicted of a serious crime that raises some very legitimate concerns on the part of the Management going forward, they have demonstrated justification for their decision. At the same time however, the Union has presented convincing evidence which sets forth a number of factors that existed which ultimately favor the imposition of a penalty less than the Grievant's dismissal.
The Company sought to set aside the award, and the District Court granted the employer's motion. The Eight Circuit affirmed, observing:
Here, the language of the arbitrator’s decision—specifically that NSP had “demonstrated justification” for its decision to terminate Snow—is sufficient to show that the arbitrator found the termination was supported by “just cause.” Having answered the first submitted question in the affirmative, the arbitrator had no authority to address the second question or to fashion a remedy different than the termination. Therefore, the district court properly vacated the arbitrator’s award for reaching beyond his authority under the CBA.
In reaching this conclusion, the Court noted with approval decisions from other circuits, including the Fifth Circuit's "implied just cause" cases (discussed here), holding that having found just cause an arbitrator was without authority to reduce the penalty.
The dissenting opinion argued that the arbitrator had made no finding of just cause, and that when read in context the arbitrator's award "cannot fairly be read to favor NSP".
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