Friday, March 30, 2012

Labor Arbitration in the News


Courthouse News Service reports that Unite Here Local 25 survived a Motion to Dismiss its action seeking an injuction and arbitration over its claim that former owners of the Madison Hotel breached its successorship clause in its sale of the hotel. The court determined that the sale of the hotel did not moot the Union’s claim. Union Fight at Madison Hotel Won't Check Out


Arbitrator Jack Tillem has upheld a grievance claiming that The Port Authority of New York and New Jersey breached its contract with IBEW Local 3 when it ceased providing free tolls to retirees. Arbitrator Tillem concluded that the last contract provided the benefit to the retirees for “life”. Port Authority ordered to reinstate toll-free passes for retirees

Arbitrator Claude Dawson Ames has issued a decision allowing the Clark County, Arizona school board to reduce teacher’s salary to pay for increased pension contributions. Arbitrator sides with School District in $10 million pay dispute

New employees of Westport , CT Public Works department will be subject to a defined contribution pension plan rather than the current plan pursuant to an arbitrator’s recent decision. Arbitration Decision Issued in Long Running Westport Public Works Contract Negotiation. A somewhat similar decision affects certain Philadelphia employees. Arbitrator rules for city's hybrid pension plan, created to hold down costs

Sunday, March 25, 2012

Award set aside because arbitrator ignored stipulated issue

A California Court of Appeals has refused to enforce an arbitration award granting back pay for “out of class” work to employees of the Victim’s Compensation and Government Claims Board (VCGCB). Department of Personnel Administration v. SEIU Local 1000. SEIU Local 100 filed a grievance on behalf of the VCGCB employees, claiming they were working “out of class” and were entitled to differential pay. While the employees were subsequently reclassified to the higher classification, the Union went to arbitration on the claim for back pay.

The cba addressed claims both that employees were working out of their classification and claims that they had been misallocated to the wrong classification, but a grievance could claim only one of these issues.

At the arbitration the parties stipulated the issue to be whether the subsequently reclassified employees “work[ed] out of class…”. During the course of the arbitration, however, the Union asserted that the issue was one of misallocation. The arbitrator noted that the original grievance sought reclassification and that “[o]n its face, the stipulated issue may reasonably be subject to dispute” He concluded that “considered in context” the issue presented was one of reclassification. On the merits the arbitrator found that the employees had not been working out of class as that term was defined in the contract, but that the employees had been performing the work of the higher classification and that reallocation was appropriate. He awarded back pay for the period prior to the reclassification.

The employer sought to set aside the award, contending that the arbitrator exceeded his authority by deciding an issue not before him (i.e. the reclassification issue) and awarding back pay when the contract permitted back pay only in working out of class cases. The trial court agreed, and vacated the award. The Court of Appeals affirmed the lower court’s decision, agreeing that the arbitrator exceeded his powers by deciding an issue not before him.

Like the lower court the Court of Appeals found no ambiguity in the stipulated issue. In affirming the decision to vacate the court observed:

The parties agreed to arbitrate the issue of whether the [employees] had been working out of class within the meaning of [the agreement]. The arbitrator based his ruling on whether the [employees] had been reallocated. In doing so, the arbitrator exceeded his delegated powers. The trial court properly vacated the arbitrator’s award on that basis.

Friday, March 23, 2012

Labor Arbitration in the News

A King City, California police officer who also served as union president has been ordered reinstated after having been terminated following the union's no confidence vote in the police chief. Arbitrator finds King City police chief fired officer in retaliation. Daniel Selig found a retaliatory motive on the part of the police chief.

An arbitrator has upheld the termination of two sheriff’s deputies for failing to secure the passwords for their computers. Pornography had been discovered on the computers and the arbitrator concluded that it was unlikely that anyone else was responsible for viewing pornography on their computers. Arbitrator: Firings of Northumberland County porn viewers was legal.

The City of Kalamazoo has settled the claim of a a police officer who was ordered reinstated by an arbitrator last year. Pursuant to the settlement of the officers civil suit he will retire on a disability pension. Arbitrator who awarded Kalamazoo detective his job back concluded evidence that led to his firing was embellished, manufactured.

Sunday, March 18, 2012

Arbitrator correctly limited analysis to contract despite arguably conflicting City ordinance

A majority of the Court of Appeals of Indiana has reversed the trial court and enforced the  award of Arbitrator Edward Archer finding the City of Gary improperly refused to follow its contract concerning bumping.  Wright and AFSCME, Council 62, Local 4009 v. City of Gary, Indiana.

The Union was recognized in the contract as representative of a unit of “employees of the City of Gary, Gary Park Department, and Gary Health Department, as noted in the job classifications in Schedule A…” The unit excluded “confidential “employees as defined in a city ordinance.
After her position was eliminated, an employee sought to bump another employee, an administrative assistant to the Gary Fire Civil Service Commission (GFCSC), whose job title was among those included in Schedule A.  The employee was interviewed by the Chair of the GFCSC and determined to be qualified. Shortly thereafter, however, the City asserted that the administrative assistant position, despite its inclusion on Schedule A, was non union and it was a confidential position. The arbitrator rejected both of these contentions and upheld the grievance.
Seeking to set aside the award the City sought review, arguing that the Arbitrator had exceeded his authority and had imposed a remedy on an entity not a party to the contract. The City maintained that the inclusion of the administrative assistant position in the unit had been in error, and that a separate city ordinance had vested the GFSCS, a non party to the contract, with the sole authority to select the person who would fill that position.  The trial court agreed with the City, finding that the Arbitrator had ignored the city ordinance.
Reversing the trial court decision, a majority of the Appeals Court found that the Arbitrator correctly limited his decision to interpretation of the contract.  The court noted “An arbitrator exceeds his powers if his decision is based solely on the arbitrator’s view of the requirements of enacted legislation rather than on an interpretation of the collective bargaining agreement.”  Any damage suffered by the GFCSC by virtue of the inclusion of the administrative assistant position in the unit was an issue between the City and the GFSCS and not properly an issue before the arbitrator. The court also rejected the City’s challenge to the Arbitrator’s conclusion that the position was not confidential, noting that while the assistant did have access to personnel records, they were records of employees represented by a different union.

Friday, March 16, 2012

Labor Arbitration in the News

A second Las Vegas nurse, terminated for alleged involvement in a patient’s death, has been ordered reinstated by an arbitrator. Fired nurse should be reinstated, arbitrator rules - News - ReviewJournal.com. The hospital involved has previously refused to comply with another arbitrator’s award reinstating a different nurse allegedly involved in the same incident. Union sues after Sunrise refuses to rehire nurse - News - ReviewJournal.com. 

The Chicago Teachers Union prevailed in an arbitration seeking the reinstatement of eight audiometric and vision screening technicians who had been laid off.Chicago Teachers Union gets employees reinstated - Chicago City Hall | Examiner.com. According to the Union, the technicians had been “cherry picked’ and “capriciously and arbitrarily laid off.” 

A police officer accused of lying to a superior officer has been ordered reinstated by an arbitrator who did not find the lying intentional. Other actions of the officer were determined to be supported by the evidence, but insufficient to justify termination of employment. Arbitrator overturns Orleans officer's firing | CapeCodOnline.com 

A former police officer failed in his bid to set aside an arbitration award that upheld his termination. Former Auburn police officer Hutchings denied pension, back pay. The officer’s termination occurred just three months before he would have been eligible for a pension. The court rejected his argument that while the City could suspend him, only an independent arbitrator could fire him.

Monday, March 12, 2012

Three recent cases address the role of courts in reviewing arbitration awards

The 10th Circuit, in San Juan Coal Co. v. International Union of Operating Engineers, Local 953 reversed the District Court and enforced an arbitrator’s award. The underlying dispute involved the interpretation of language in the parties’ cba addressing premium pay for work in excess of an employee’s normal shift. The arbitrator had ruled for the Union, but the District Court refused to enforce the award. The Appeals Court noted that while the District Court’s interpretation of the contract was a plausible, its opinion failed to give sufficient deference to the award of the arbitrator. The court noted:

An arbitrator’s interpretation of an agreement, even one that is flawed or based on questionable findings of fact, is due the utmost judicial deference. It matters not that a reviewing court might offer a more cogent reading of the agreement; the arbitrator’s interpretation must be upheld wholly unless it is without textual basis.

Finding the arbitrator’s award had “at least some foundation” in the text of the agreement the Court reversed and remanded with instructions to enter an order enforcing the award.  

Two cases from Ohio, involving public sector agreements, reach similar conclusions. 

 In Field Local Teachers Ass. v. Field Local School Dist. Board of Education, the Court of Appeals refused to reverse the lower court’s decision enforcing an arbitration award concerning evaluations of teachers employed under Limited contracts. The dispute involved the relationship between the contract and an Ohio statute on tenure. The arbitrator had ruled in favor of the School Board and the Union sought to set aside the award. Like the lower court, the Court of Appeals refused to do so. It noted that while “the interpretation of the CBA espoused by the Union is not unreasonable, we cannot substitute our interpretation for that of the arbitrator”

Similarly, in City of Parma v. Parma Firefighters Assn. Local 639 , the court rejected the City’s attempt to set aside an award that reinstated an employee who had tested positive for cocaine. The Court rejected the City’s public policy argument, and found the arbitrator’s interpretation of the City’s drug and alcohol policy, appended to the cba, drew its essence from the contract and was therefore entitled to deference.


Friday, March 9, 2012

Labor Arbitration in the News

An adverse arbitration award on a one day suspension has apparently led the Worcester, County Mass Sheriff to seek to end arbitration. Worcester Telegram & Gazette - telegram.com - Union, sheriff locked in strife####. The president of New England PBA Local 550 had been suspended for claimed abuse of sick leave. Arbitrator Sarah Kerr Garraty overturned the one day suspension, concluding that the sheriff’s office had failed to make clear what the applicable standards were. The Sheriff criticized the decision and announced that he will seek to eliminate arbitration from future contracts.

 The US Postal Service is seeking to overturn an arbitration award issued by Hamah King. Postal Service sues union over lockers | ThisweekLive. The award requires the Postal Service to install larger lockers at its processing and distribution facility in Eagan, Minn. Employees had complained that the lockers were smaller than those in their former facility and were not large enough to accommodate their winter gear. Arbitrator King ordered the Postal Service to install lockers at least as large as at the facility the new center replaced.

Finding the Company’s argument that progressive discipline didn’t exist under a Teamsters contract “inexplicable”, an arbitrator ordered the reinstatement with back pay of a thirty year pharmacist. 30-Year Osco Pharmacist reinstated with $150,000. in Back Pay


Arbitrator Stanley Michelstetter upheld the termination of one employee but reversed the discipline imposed on two others for their handling of “scrap” wood and the alleged misuse of time. HALSTEAD WINS REINSTATEMENT OF AFSCME EMPLOYEE IN COLUMBIA COUNTY HIGHWAY DEPARTMENT ARBITRATION A copy of Arbitrator Michelstetter’s award can be found here.

Monday, March 5, 2012

Reinstatement of municipal employee who failed drug test not contrary to public policy

A Connecticut appeals court has affirmed the lower court’s refusal to set aside an arbitration award reinstating a town highway worker who twice failed a town mandated drug test. Both test failures resulted from alleged failure to comply with testing policy rather than evidence of actual drug usage.  Town of North Branford v. Daniel Pond et al. Grievant was terminated after leaving the room prior to producing an acceptable urine sample. Pursuant to the Town’s policy, this was counted a test failure. This was grievant’s second test failure and the Town terminated his employment.

The parties submitted to arbitration the issue of whether the Town “terminated [Grievant] for just cause consistent with the contract? If not, what shall the remedy be?” The arbitrator concluded the Town did not have just cause for the termination but directed Grievant to take and pass a drug test at his own expense in order to return to work, with no back pay or benefits.

The Town sought to set aside the award, arguing that the award was contrary to public policy, and that the arbitrator had exceeded his authority and, in any case, the award was not sufficiently final and definite to be enforced.

Like the lower court, the appeals court, relying in significant part on the US Supreme Court’s decision in Eastern Associated Coal Corp. v. United Mine Workers, found no violation of public policy in the arbitrator’s award. The court noted that the award removed Grievant from his safety sensitive position until he took and passed another drug test. Accordingly the court rejected the attempt to overturn the award on public policy grounds.

 The Court also rejected the Town’s other theories for setting aside the award. It found that while the contract reserved to the Town “full control of the policies, practices, procedures, and regulations with respect to employees” and that the Town’s “actions with respect to such rights and responsibilities are not subject to review, except as specifically abridged or modified by the agreement”, the agreement also provided that all discipline must be supported by just cause. Because the award thus drew its essence from relevant provisions of the agreement there was no basis for setting it aside. Finally the court rejected the claim that the award was insufficiently definite or final for enforcement. While it did not prescribe the manner or method by which grievant was to be tested before he was returned to work, neither did the Town’s policy, which contained similar language for employees temporarily relieved from duties because of a failed drug test.

The lower court decision can be found here.

Friday, March 2, 2012

Labor Arbitration in the News

Solano County, California has filed suit seeking to overturn an award of Arbitrator James G. Merrill that reinstated a former benefits eligibility supervisor. Arbitrator Merrill reduced the termination to a thirty day suspension. The County argues that while the applicable contract allows the arbitrator to affirm or reverse the discipline in issue, it does not allow for modification. Solano County sues union over fired welfare worker’s job status | Daily Republic


A Seattle, Wash judge has set aside an award of Arbitrator Paul Grace which had prevented the Police Department from releasing the names of officers disciplined for misconduct. Local News | Judge allows release of disciplined Seattle police officers' names | Seattle Times Newspaper. The arbitrator had  determined that the release of officer’s names was precluded by the labor agreement which provided “It is understood that an officer’s personal identifying information shall be redacted from all records released”.  King County Judge Dean Lum vacated the decision, concluding that the collective bargaining agreement “can’t trump state law” and that release of officer’s names was required in most cases. A prior article discussing the award, together with a copy of Arbitrator Grace’s decision can be found  here.

Arbitrator Karen Mawhinney has reduced a termination to a suspension for a teacher accused of forwarding inappropriate emails  .Arbitrator: Middleton-Cross Plains must reinstate teacher who viewed porn at work. The arbitrator concluded that the teacher had not engaged in “immoral conduct”, the standard in effect at the time of the incident.  Update: The school board has voted to seek to set aside the award. Middleton-Cross Plains School Board to Appeal Teacher's Reinstatement.
Arbitrator Ronald Talarico has ordered the reinstatement of eight Pennsylvania corrections officers, finding the Department of Corrections had failed to proved the accused guards with information concerning why the action was taken against them. Arbitrator: Accused PA guards should get jobs back. The DOC claimed that they were prevented from providing this information because of an ongoing grand jury investigation. At least some of the officers are still facing criminal charges.