Friday, December 21, 2012

Employer must meet and confer before correcting error



The California Federation of Interpreters reports on an award it received affirming the obligation of the Sonoma County (California) Superior Court to meet and confer with the Union before making changes to the policy on reimbursement for continuing education expenses, even though the changes were consistent with the contract. CFI Vindicated in Sonoma Arbitration.The arbitrator rejected the employer's claim that the past practice it changed was inconsistent with the contract and that it was under no obligation to meet and confer before bringing the practice into compliance with what it believed the contract required.
Arbitrator Paul Staudohar's award can be found here.

Monday, December 17, 2012

Enforcement of award denied; no noncompliance shown

The Chicago Regional Council of Carpenters prevailed in an arbitration against Onsite Woodwork Corporation concerning the proper compensation for employees who had been recalled from layoff. The arbitrator's award provided "Any grievant recalled from layoff after six months and removed from the bargaining unit must be reinstated and dues and initiation fees, if any, restored to them."

The Union filed suit seeking to confirm the award, and claimed that the employer's requiring grievants to undergo a new orientation period violated the award. The court determined that requiring a new orientation period was not inconsistent with the award, and in fact was recognized by the arbitrator as appropriate. Finding no other evidence that the employer was not complying with the award, the court rejected the Union's efforts at enforcement.

The Court observed:

Since Onsite has complied with the award, it would be improper for the Court to confirm the arbitration award at this time. Article III of the United States Constitution restricts the judicial power of the federal courts to "cases" and "controversies." U.S. Const. Art III, § 2. In addition, the ripeness doctrine dictates that courts should decide only existing substantial controversies, not hypothetical questions and possibilities. See Wisconsin Right to Life State Political Action Committee v. Barland, 664 F.3d 139, 148 (7th Cir. 2011).
In applying these principles to requests to confirm arbitration awards between labor and management, the majority of courts hold that the award should not be confirmed where there is no live and actual dispute between the parties


Agreeing with that majority of courts, the U.S. District Court for the Northern District of Illinois dismissed the Union's action, but noted that should a bona fide dispute subsequently arise, the Union could seek to confirm the award at that time. The Court further noted the five year statute of limitations for enforcement of arbitration awards in the Seventh Circuit, finding any prejudice to the union unlikely.

The court's decision  can be found here.

Friday, December 14, 2012

Termination of Deputy for release of law enforcement information upheld

Grievant was employed as a Deputy by Wright County Minnesota Sheriff's Office. Her employment was terminated for allegedly sharing private law enforcement information with a cousin and lying about it during an investigation of the issue.

Grievant was alleged to have provided her cousin, who was in a custody dispute with the mother of his child, with law enforcement information concerning the mother's release from the hospital and the possible existence of outstanding warrants. The mother had previously complained to the Sheriff's Office about a claimed improper disclosure. An investigation of that incident was inconclusive, but the Sheriff counseled Grievant about improperly sharing law enforcement information. When the mother again complained about the release of confidential information the Sheriff questioned Grievant about the allegation. She initially denied having released information, but when confronted with a recording of a voice mail message she had left for her cousin acknowledged sharing information with him. Her employment was terminated and the Wright County Deputies Association filed a grievance on her behalf and pursued the matter to arbitration.

Arbitrator Stephen Befort denied the grievance. He overruled a challenge to the admissibility of the recorded voice mail message and concluded that Grievant had engaged in the conduct alleged. He also found Grievant's claim that she had not recalled leaving the message not credible.

Rejecting the Union's argument that termination was too severe for the offenses alleged, the Arbitrator noted:

Law enforcement officers are held to a high standard of conduct because they serve as society’s thin blue line of security and safety. As Sheriff Hagerty aptly summarized, [Grievant's] conduct
falls short of this norm in that it undermines the integrity of the Wright County Sheriff’s Office and violates the public trust in fair and unbiased law enforcement. Under these circumstances, the Employer’s discharge decision constitutes an appropriate remedy.
 

Arbitrator Befort's award can be found
here.









Monday, December 10, 2012

Postal Service can't charge Union for ergonomics information request

Arbitrator Shyman Das has upheld a grievance filed by the APWU, finding that the Postal Service violated its cba by requiring the Union to pay for information requested in connection with a Joint Union Management Committees. The cba created a Joint Labor Management Safety Committee and a Joint Labor Management Ergonomics Committee, with a purpose "to evaluate and make recommendations on all aspects of the Employer's respective Safety and Ergonomics Programs, to include program adequacy, field implementation, studies for improving the work environment, training, and unsafe conditions."

A dispute arose between the parties concerning a Union request for information in connection with certain ergonomics issues. The Union alleged that the Postal Service breached its obligations under the contractual joint committee language by demanding that the Union pay
the costs incurred in responding to the Union's request. After addressing other issues raised by the Union's grievance, Arbitrator Das addressed the payment issue. In finding the Postal Service's position inconsistent with its contractual commitments the Arbitrator noted:

The remaining issue concerns payment by the Union for information it requested from the Postal Service. As the Postal Service asserts, the provision in Article 31.3 which permits the Postal Service to require the Union to reimburse it for costs incurred in obtaining information it requests to carry out its responsibilities as bargaining representative does not carve out an exception for information relating to safety and health or Article 14 issues. Nor does Article 14 expressly address payment for information requested by the Union. But charging the Union for information it reasonably requests in good faith to fulfill its joint role and obligations under Article 14 in relation to issues before the National Ergonomics Committee is not consistent with the overall structure and tenor of Article 14.  Moreover, the Postal Service did not present specific evidence contradicting Bell's testimony that the Union historically has not been charged for such information. Accordingly, the Postal Service is directed to provide information reasonably requested by the Union in good faith to fulfill its role and obligations under Article 14 in relation to issues before the National Ergonomics Committee without exacting payment therefor. (footnote omitted).

APWU links to Arbitrator Das' award here.

Friday, December 7, 2012

Importance of live witness testimony

The City of Miami terminated the employment of a police officer for conduct he was alleged to have engaged in in connection with the arrest of two individuals. His conduct was also the subject of threatened litigation, an Internal Affairs investigation and a criminal investigation. The officer grieved his termination and the matter proceeded to arbitration. At the arbitration hearing neither of the two arrested individuals testified. The City instead relied on statements that they had made in connection with the other proceedings. Grievant testified and denied any misconduct.

After extensively reviewing the evidence, including the statements of the two arrested individuals, Arbitrator M Scott Milinski concluded that the City had not established just cause for the termination.
Arbitrator Milinski observed that there was "no real justification for [the two arrested individuals] failure to testify subject to cross examination." While a 911 tape was introduced which captured some of the events, the Arbitrator noted the tape ended before the conclusion of the incident, and that "Only the [officer] testified as to what occurred during the 2 minute gap."

The Arbitrator noted:

There is another side to this incident. However, [the two] did not testify at the hearing; and could not be cross examined.
                                                         ***
This Arbitrator fully understands that had [the two] testified in the arbitration hearing his findings may be different. Their testimony is essential to many aspects of the City's case. Just as important, the discharged Grievant was not afforded the opportunity to confront his accusers at the arbitration hearing and test their credibility and demeanor. Further, this Arbitrator was not able to hear critical witness testimony.
                                                       ***
In conclusion, the City has not shown sufficient cause under the Collective Bargaining Agreement to discharge the Grievant.

The Miami Herald reports on the case, Miami Beach cop fired in gay bashing case to get his job back, and links to the full text of the Award here.

Monday, December 3, 2012

Arbitration award reducing pay enforced

The cba between Giant Eagle and UFCW Local 23 provided that the Company could "increase staring rates, grant bonuses, individual increases, and any other forms of incentives. The increases can be done by department and/or store." The contract obligated Giant to notify and meet with the Union prior to implementation but also provided "All of these changes can be done at the Company's sole discretion and any of these changes may be rescinded and/or modified".

Giant gave wage increases to 25 employees at one of its stores, and the Union filed a grievance claiming that it had not been properly notified. The grievance proceeded to arbitration and the arbitrator ordered Giant to stop granting raises "without first obtaining concurrence from the Union", and to rescind the increases already given. The arbitrator rejected a request to increase wages of other employees as a remedy.

Giant filed suit seeking to set aside the award, arguing that the requirement that it obtain the Union's consent prior to implementing a wage increase was contrary to the terms of the cba and that the arbitrator had exceeded his authority in finding both notice and consent required.

Noting the narrow scope of review of an arbitrator's award, the U.S. District Court in Pennsylvania rejected the Company's effort. The Court found sufficient evidence that the arbitrator's award was based on an arguable interpretation of the contract, all that was required to enforce it. The court noted that the arbitrator found certain provisions of the contract ambiguous and concluded that the "sole discretion" provision applied only to increases done on a store wide or department basis, not to individual employees.

The Court enforced the arbitrator's award, and his remedy, concluding:

 The Court understands that the net result of the Union’s dispute is that some of its members will have their raises rescinded - - in other words, the action of the Union in the arbitration will have the effect of taking away raises of certain members, thereby causing harm to its own members. However, the Court’s inquiry is not which reading of Article 14 the Court agrees with or how this Court would have determined this dispute. Arbitration Awards are given "a strong presumption of correctness" by District Courts. ... After review of the Arbitrator’s Award, the Court finds that it can be rationally derived from the issue submitted before the Arbitrator and the Labor Agreement that was in dispute. Therefore, the Award will be enforced.

The Court's opinion can be found here.