Sunday, May 22, 2016

CA9: Decision that an award is not "plausible" is insufficient to vacate

A dispute arose between Drywall Dynamics, Inc and the Southwestern Regional Council of Carpenters concerning attempts by the Company to withdraw from a multi employer bargaining arrangement. The Company's initial attempt to terminate its participation was rejected by the Union as untimely. A second rejection occurred after the association and the Union entered into a Memorandum of Understanding extending the cba for an additional year. In response to a grievance concerning the Company's claimed breach of the cba, an arbitration panel determined that the Company's purported withdrawal was untimely. 

The Union sought to confirm the award and the Company sought to vacate it. The District Court vacated the award, concluding that the arbitrator's interpretation of the agreement was not plausible, and that it was contrary to public policy.

On the Union's appeal, the Ninth Circuit has reversed. In doing so it recognized that language of several earlier opinions suggested that an award would be deemed to have drawn its essence from the parties cba as long as it was a "plausible interpretation of the contract." It determined however, that the plausibility inquiry did not authorize an independent basis for an attack on the merits of the award. Finding that the term was "somewhat misleading" the Court decided to eliminate its use. It concluded: is time for us to retire the use of "plausibility" as a term to describe the courts' role in reviewing labor arbitration awards. We do not, of course, propose any substantive change to the settled law in this area, nor could we. We merely reiterate, and emphasize, the fundamental concept  Hawaii Teamsters articulated, drawing on decades of Supreme Court jurisprudence: the quality—that is, the degree of substantive validity—of an arbitrator's interpretation is, and always has been, beside the point. Instead, the appropriate question for a court to ask when determining whether to enforce a labor arbitration award interpreting a collective bargaining agreement is a simple binary one: Did the arbitrator look at and construe the contract, or did he not?

Concluding that the panel's  analysis was grounded in a reading of the parties' agreement the Court found that the award was entitled to be confirmed.

The Court also rejected the Company's public policy challenges to the award which had claimed the award violated a policy of voluntary relationships between employers and multi employer associations and that it improperly imposed union representation on the Company's employees. 

The Ninth Circuit's opinion can be found here.

Sunday, May 15, 2016

Working below classification, seniority and management rights

These were the topics in issue in a recent award by Arbitrator Richard Beens.

 The dispute arose between Boise White Paper and Steelworkers Local 159 and involved interpretation of the parties' cba. The agreement had what the arbitrator described as a strong management-rights clause providing:

Section 3.1 The Company has the right to assign work to employees, irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way. Further, nothing contained in this Agreement including, but not limited to, the Recognition Article shall limit in any way the Company’s right to assign work to employees covered by this Agreement or to other employees not cover by this Agreement.

The Company and Union were parties to a separate Memorandum of Understanding which also addressed the assignment of work and was designed to enhance efficient operation of the facility. It was the relationship between these two documents that formed the basis for the Union's claim. Specifically the Union challenged Company's temporary assignment of bargaining unit employees to jobs below their attained position on the seniority ladder. 

The Progression Ladder which had previously been in place at the facility engendered what the arbitrator referred to as a "not my job" refrain from unit employees. The MOA was designed to address that perception and enhance the efficiency of a struggling operation. The Union claimed, however, that the MOA did not authorize the Company to temporarily assign employees downward, and claimed that such an assignment violated employees' seniority rights.

Arbitrator Beens rejected these claims, concluding:

The Union argues that the giving the Employer the right to assign downward nullifies the seniority provisions of the CBA. I disagree. Union members continue to accrue seniority during their temporary assignments and are only assigned to positions for which they are qualified, again as required by the CBA. The Union presented no evidence that [Grievant's], or any other Local 159 member’s, seniority or qualification status was in any way affected by a temporary assignment.


In summary, Article 3.1 gives the Employer broad rights to assign employees, “...irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way.” The CBA, MOA, and Pay for Knowledge provisions relied on by the Union do not modify the Employer’s rights to make temporary downward assignments under Article 3.1. Base[d] on the clear, unambiguous contract language, I must deny this grievance. 

Arbitrator Beens' award can be found here.

Sunday, May 1, 2016

MD Court: Arbitrator exceeded his authority when he relied on a cba provision the County was not authorized to negotiate

Prince George's County, MD and the Prince George's County Police Civilian Employees Association were parties to a cba that included  language providing that covered employees were entitled to a notice of their eligibility to have a Union representative present prior to an investigatory interview.

Grievant was the subject of both a criminal investigation regarding alleged crimes and an internal affairs investigation concerning workplace conduct. Grievant was interviewed by employees of the Department's Criminal Investigations Division concerning the alleged crimes, and separately by the Department's Internal Affair's Division concerning workplace issues. Grievant was provided the requisite notice concerning the Internal Affairs investigation but not for the CID interview. Grievant's employment was ultimately terminated. An arbitrator overturned the dismissal, concluding in part that the failure to provide notice of grievant's eligibility for the presence of a Union representative during the CID investigation violated the cba and undermined the County's claim of just cause

The City sought to set aside the award, arguing, inter alia, that the award was against public policy. The Court of Special Appeals granted the County's request, concluding (in an opinion discussed in Weingarten and criminal investigations of employees) that the award was contrary to an explicit , dominant, and well-defined public policy of effective law enforcement. The Union appealed, and the Maryland Court of Appeals has now affirmed, but on different grounds. The Court described the issue before it as:

whether a county has the authority under the county's code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county's police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

Concluding that the County had no such authority, the Court went on to decide that the arbitrator had therefore exceeded his authority by relying on a provision of the cba that was beyond the County's authority to enter into. It noted: 

In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator's authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that PGCC § 13A-109(a) does not confer upon the County the authority to enter into a collective bargaining agreement requiring that a police civilian employee be advised of a right to have a union representative present before a criminal investigative interview by the Prince George's County Police Department.

In light of this conclusion the Court found it unnecessary to decide the public policy question addressed by the Court of Special Appeals.

The Court's opinion in Prince George's County Police Civilian Employees Association v. Prince George's County, Maryland can be found here.

Sunday, April 24, 2016

Another unsuccessful public policy challenge to an arbitrator's award

The City of Cleveland terminated the employment of a police officer for her essentially undisputed actions of stabbing a romantic partner.

 Grievant had been dating and, for a time, living with the partner. He had a criminal history of convictions for a number of offenses including drug possession, sexual battery, attempted kidnapping and  gross sexual imposition. On March 12, 2012 the two engaged in an argument and grievant, while intoxicated, stabbed the partner several times and fled the scene. She was found in her vehicle with a cord that was suspended from the ceiling of the car wrapped around her neck. Grievant was arrested and charged with felonious assault. She was subsequently charged with a reduced offense and sentenced to county jail for six months. The sentence was suspended but her employment was terminated.

In an award (discussed here) Arbitrator Paul Gerhart ordered her reinstatement. He concluded that while grievant had engaged in "particularly egregious" conduct the temination was not for just cause. Arbitrator Gerhart relied on evidence that other officers who had engaged in arguably similar behavior had not been terminated and found that this evidence of disparate treatment undermined the City's case. He noted also a number of mitigating factors and reinstated her (without back pay) subject to her refraining from alcohol  and her compliance with any requirements imposed by the City's Employee Assistance Program.

The City sought to set aside the award but the trial court refused to do so. The Court of Appeals of Ohio has now affirmed that decision and upheld the award. City of Cleveland v. Cleveland Police Patrolmen's Association. The City claimed that the award was contrary to public policy, a claim that the Court quickly rejected. The Court observed that the City had failed to state a well defined public policy argument and noted:

The arbitrator acted within his discretion, and the City did not effectively argue how his decision is in conflict with public policy. The City only argues that the public should be able to have the confidence in police officers and that officers should hold themselves to the highest ethical standard. However, there are many cases where police officers have not held themselves to such a high standard, and yet they were not terminated from their jobs. 

The Court also rejected the City's claims that the arbitrator improperly required it to use progressive discipline and did not issue a "final" award because he essentially deferred to the City's Employee Assistance Program to decide what, if any, continuing counseling was appropriate.

Sunday, April 3, 2016

Public policy challenges to arbitration awards - three recent cases

Award ordering compliance with wage increase in the absence of appropriation contrary to public policy

The Illinois Supreme Court has overturned lower court decisions and vacated an award of Arbitrator Edwin Benn. Arbitrator Benn upheld a grievance, finding that the State of Illinois had breached its cba with AFSCME Council 31 by refusing to implement a 2% wage increase called for in a multi-year cba. The State claimed that it could not implement the raise because the legislature had not appropriated funds. 

In his award Arbitrator Benn found that the Union was contractually entitled to the increase. He rejected the State's reliance on language of Section 21 of the IPLRA, concluding that interpretation of a statute not incorporated in the cba was beyond his authority as an arbitrator.

The State challenged the award but both the trial court and the appellate court refused to vacate it. (State must adhere to cba despite lack of appropriated funds.)

On the State's appeal the Supreme Court reversed and vacated the award. State v. American Federation of State, County and Municipal Employees, Council 31. The Court concluded: 

... we hold that section 21 of the Act, when considered in light of the appropriations clause, evinces a well-defined and dominant public policy under which multiyear collective bargaining agreements are subject to the appropriation power of the State, a power which may only be exercised by the General Assembly. We further hold that the arbitrator's award, which ordered immediate payment of the 2% wage increase without regard to the existence of corresponding appropriations by the General Assembly, violated this public policy. Accordingly, we reverse the judgments of the appellate court and circuit court, and vacate the arbitration award.

Award overturning termination of employee accused of mistreating special needs student not contrary to public policy

Grievant was employed as a special education aide, assigned to work with a student with Down's syndrome. In March of 2011 grievant was responsible for getting the late arriving student to his classroom. As she was walking the student to the classroom he dropped to the floor and refused to enter. Grievant pulled the child approximately 20 feet in to the classroom.  Other employees present, made no effort to intervene. After receiving a report of the incident the principal met with grievant who apologized and expressed remorse. Grievant was allowed to return to care for the child. Subsequently grievant was placed on unpaid leave and the employer ultimately recommended her termination. 

Arbitrator Margaret Brogan found termination excessive. The arbitrator concluded that grievant had not acted in anger,  was a long term employee without discipline, and that  grievant had been forthcoming and remorseful. Arbitrator Brogan converted the termination to a five day suspension.

The School District sought to have the award vacated, arguing, inter alia, that it was contrary to the public policy calling for protection of students from violence on school property. The court refused the Board's request, and now the Commonwealth Court of Pennsylvania has affirmed. Rose Tree Secretaries & Ed. Support Personnel Ass'n v. Rose Tree Media School District. The Court observed:

Employer's public policy argument lacks merit. Arbitrator found Grievant's version of the incident more credible than that offered by Employer. Although Arbitrator found Grievant's actions, in pulling Student, to be unacceptable, Arbitrator did not find those actions motivated by anger or intent to harm. In addition, Arbitrator did not find that Grievant's conduct harmed or abused Student, or violated school laws. ...  As such, Arbitrator essentially determined Grievant did not violate any well-defined or dominant public policy involving school violence.
In the present case, Arbitrator determined a 5-day suspension was sufficient to ensure that Grievant, a 10-year employee with a prior unblemished record, would not repeat her misconduct. Arbitrator observed that Principal instructed Grievant as to alternative strategies if a similar incident should occur. Also, Arbitrator specifically found that the corrective discipline imposed would most likely change Grievant's behavior, and that she would be able to effectively care for children going forward.

 Public policy does not compel termination of employee for single act of  sexual harassment

Grievant was a twenty-two year employee of the City of Springfield, Mass. He had signifiant physical and mental health problems, including cerebral palsy, epilepsy, and depression. He was also evaluated as having a "mildly impaired" IQ. He was accused of having  engaged in a single act of inappropriate behavior involving another employee and his employment was terminated. An arbitrator found that the grievant had engaged in the conduct alleged, but concluded that termination was too severe a penalty and that he had been subjected to disparate treatment. The arbitrator ordered his reinstatement without loss of pay.

The City sought to set aside the award, arguing that the award effectively precluded it from taking the remedial action required by state and federal law and that the award violated public policy. The Superior Court confirmed the award, and the Mass. Appeals Court has now affirmed. City of Springfield vs. United Public Service Employees Union. The Court concluded:

[Grievant's] conduct here, as found by the arbitrator, did not require dismissal because a lesser sanction, progressive discipline, would not violate public policy. In light of her findings regarding his significant mental and physical limitations, his pliant demeanor, and his twenty-two year problem-free work history,  [Grievant's] misconduct, despite its severity, did not require termination. It was within the arbitrator's ample authority to conclude that these factors made progressive discipline rather than termination an appropriate remedy. 

A somewhat similar dispute, reaching a contrary result on different facts, is discussed at Connecticut Supreme Court: Egregious sexual harassment compels termination, arbitrator's contrary award set aside

Sunday, March 27, 2016

"No-add" language in cba doesn't prevent arbitrator from modifying contract

Can an arbitrator rewrite a contract to reflect the original intent of the parties despite language prohibiting the arbitrator from adding to or modifying the agreement? Arbitrator Michael Rapport said yes, and the District Court in Arizona has now confirmed that award. 

The cba between Asarco and the Steelworkers called for the payment of a Copper Price Bonus to unit employees on a quarterly basis, computed relative to the current price of copper. The agreement limited eligibility to employees accruing credit under the pension plan at the end of the calendar quarter.

In negotiation for a successor contract in 2011, the Company proposed that new employees would not be covered by the pension plan. It was undisputed, however, that there was no discussion of the impact of that proposal on the eligibility of new employees for the Copper Price Bonus or the link between pension eligibility and  eligibility for the bonus plan. The new agreement, with the Company's language on elimination of pension eligibility for new employees, was ultimately agreed to by the Union and ratified by the members.

After agreement was reached, one of the Company's HR representatives asked the Company's Director of Labor Relations about the impact of the pension language on bonus eligibility, explaining that as he read the language new employees were no longer eligible. The Director responded that "we have an issue here" and that this was new information for him. It was also undisputed that for several months after the new agreement became effective new employees were told that they would be eligible for the bonus.

As the time for payment arrived, the Company notified  the Union that it would not be paying the bonus to new employees. It maintained that the express language of the agreement rendered ineligible new employees not participating in the pension plan. The Union grieved the Company's decision and the dispute was submitted to Arbitrator Rappaport for resolution.

The Arbitrator issued an award upholding the grievance. He noted that while no contract language supported the Union's position, the doctrine of mutual mistake applied and warranted reformation of the contract. He found that neither party anticipated the impact of the elimination of pension eligibility on eligibility for the bonus payment. He rejected the Company's argument that language in the cba that withheld from the arbitrator "jurisdiction or authority to add to, detract from or alter in any way the provisions of [the] Agreement" prevented him from reaching such a conclusion. He observed:

What all this means is that the ultimate issue in this case is whether the Union met its heavy burden of showing that there was a mutual mistake made by the parties in negotiating and adopting the July 1, 2011 MOA. In situations of that kind, it has been recognized by numerous, but not all, arbitrators and other authorities that in the interests of justice and fairness, the arbitrator can rewrite a contract to correct what appears to be an obvious mutual mistake.

Accordingly the Arbitrator modified the cba to explicitly include eligibility of new employees for the Copper Price Bonus.

Asarco sought to set aside Arbitrator Rapport's award, arguing that he had exceeded his authority and that he had ignored the "no-add" provision of the cba. The Court summarized Asarco's claim:

 ASARCO argues that the Arbitrator exceeded the express jurisdiction and authority granted to him by the parties and dispensed his own brand of industrial justice by issuing an award that fails to draw its essence from the BLA [Basic Labor Agreement]  because it expressly violates the BLA. ... Citing United Food & Comm'l Workers Union, Local 1119, AFL-CIO v. United Markets, Inc.784 F.2d 1413, 1415 (9th Cir. 1986), ASARCO contends that if "the arbitrator's interpretation [of the collective bargaining agreement] violates the terms of the agreement, the court cannot enforce the award." (Doc. 1 at 11.) According to ASARCO, the award must be vacated because the Arbitrator added a new five-line term to the BLA, despite the BLA's express language stating that the Arbitrator did not have authority to vary the terms of the agreement.

Rejecting this claim, the District Court concluded :

The Court finds that the "no-add" provision did not close the door on the Arbitrator's authority to fashion relief when the undisputed facts revealed mutual mistake by the parties. The Arbitrator's reformation of the collective bargaining agreement only corrected the defect in the written document so that it reflected the true terms of the parties' agreement. The Arbitrator did not exceed his authority by applying ordinary principles of mutual mistake and reformation in the context of the "no-add" provision of the BLA.

The Court accordingly denied Asarco's request to vacate the award and granted the Union's request that the award be confirmed. The Court's decision can be found here.

A similar resolution is discussed at Correcting mutual mistake is not the same as modifying the contract

Sunday, March 13, 2016

Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer

Grievant was employed by the City of Chaska, Minnesota as a police officer. He had held that position for approximately 14 years with no significant discipline.

 In May of 2014 grievant was rotated to the day shift. In an effort to get out of what he described as a "funk" and improve his statistics for actively enforcing traffic laws, grievant began using stationary patrols as his primary method of traffic enforcement. This involved grievant parking at a location and looking for traffic violations. The use of stationary patrols was neither encouraged nor discouraged by the Department.

While engaging in these patrols grievant would randomly enter plate numbers of nearby vehicles to check for outstanding warrants and for individuals driving with a suspended or revoked license. This was a common method utilized by officers in the Department. Among the locations of grievants stationary patrols were the entrances and exits of two mobile home parks. Many of the residents of the mobile home parks were Hispanic and a number of residents were undocumented individuals who did not have drivers licenses. Per policy, if a plate check showed that the registered owner of a vehicle did not have a license, and if the driver generally matched the gender and age of the registered owner, it was appropriate to pull over the driver. Grievant continued to engage in these stationary patrols and, on a number of occasions, pulled over and issued citations to individuals who did not match the gender/age of the registered owner. Grievant's activities engendered a number of complaints to the Department alleging grievant was targeting Hispanics, and the Department instructed grievant to cease the stationary patrol at those locations. Grievant was upset at this directive but complied. Grievant was subsequently instructed to cease running random license plates and to cease arresting drivers for not having a license without the approval of a supervisor. In discussions with his supervisors concerning this directive grievant was alleged to have stated " I am personally responsible for sending over 100 illegal immigrants back to Mexico." Grievant denied making this statement. The Department thereafter arranged for an independent investigation of grievant's stops, and in April of 2015 terminated grievant's employment  asserting that he had "engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic/Latino drivers..." and that he had "provided untruthful answers during your interview ...."

The City's action was grieved and ultimately presented to Arbitrator Richard John Miller for resolution.

Arbitrator Miller rejected the grievance and upheld the termination.

Initially Arbitrator Miller addressed the question of burden of proof. Rejecting any effort to categorize the appropriate burden, the Arbitrator observed:

"Burden" and "quantum" of proof are two of the most involved aspects of the rules of evidence, which ordinarily are eschewed by arbitrators as being so complicated, theoretical and technical that they are unsuitable for such a relatively informal process. Consequently, rather than assigning to this case a quantum of required proof, such as proof beyond a reasonable doubt, preponderance of the evidence, clear and convincing evidence, or evidence sufficient to convince a reasonable mind of guilt, a better and more realistic approach to take is a determination of whether the Grievant is guilty of the appearance of and racial profiling by his patrol activity in the targeting of Hispanic drivers and, if so, was his misconduct the type serious enough to justify his discharge.

Applying this test, Arbitrator Miller concluded that the City had established the charges alleged. He found:

The Grievant asserts that his stationary patrol activity at the entrances and exits of the mobile home parks targeted traffic violations and not a specific class of people. However, that assertion is refuted by the evidence showing that the Grievant relied on racial and ethnic stereotypes as factors in selecting where to engage in stationary patrol and whom to stop and search. When the Grievant conducted stationary patrol at the entrances and exits of two mobile home parks widely known to have predominantly Hispanic residents, versus conducting stationary patrol on Highway 41 where the race of drivers could not be reasonably anticipated, his patrol activity effectively focused on racial and/or ethnic stereotypes as factors in his stops of Hispanic drivers since he associated no DL violations with Hispanics.

In light of this conclusion, the Arbitrator determined:

The Grievant engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic drivers in violation of CPD General Orders and the state statute. His conduct brought discredit to himself and the CPD and detracted from the respect and confidence of the community that is essential to law enforcement effectiveness.

 The Arbitrator also found that the evidence supported the City's claim that grievant had been untruthful, and that this provided an additional basis for the City's actions, noting:

A Police Officer is "granted special powers" and is held out as someone "the public can trust." City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 636 N.W.2d , 244 (Minn. Ct App. 2001), rev. denied (Dec. 11, 2001). Police Officers are held to a higher standard of conduct than other public employees. This stems in part from the oath that Police Officers take to protect the public they serve. The public entrusts the safety and security of lives and property to the protection of Police Officers. In turn, Police Officers are expected to conduct themselves in an exemplary manner adhering to the regulations promulgated by the CPD. The CPD badge and uniform worn by all Police Officers are symbols of the public's faith and trust, and Officers must conduct themselves in such a manner to be a role model to all citizens by adhering to the CPD General Orders and the state statute.

Accordingly Arbitrator Miller deemed the City's action's supported by just cause and therefore denied the grievance. The Arbitrator's award can be found here.