Monday, January 28, 2013

Arbitrator erred in reading discipline limitation into contract

The U.S. District Court in Missouri has vacated an award issued by Arbitrator Michael Hill. Teamsters Local Union No. 688 v. Meridian Medical Technologies.

The dispute involved the dismissal of grievant by Meridian Medical Technologies. The cba provided that, except for a defined list of offenses, no employee would be dismissed without having first received a warning notice. The cba also provided that a warning notice would not remain in effect for more than 12 months. Separately, Meridian's personnel policy regarding Progressive Discipline called for a four step process, including a Record of Counseling, an Employee Warning Record, Probation, and ultimately termination.

Grievant had received a Record of Counseling in December of 2009. He received a written warning on November 22, 2010, another written warning and probation in April of 2011, and his employment was terminated on June 14, 2011.

Arbitrator Hill concluded that, considering the cba and the personnel policy together, a Record of Counseling fell within the definition of a written warning notice, and that in any event all 4 steps of the disciplinary process must occur during a 12 month period. Since he found only three steps had been utilized during the 12 month period he overturned the dismissal.

Meridian sought to set aside the award, and the District Court agreed. Vacating the award, the Court determined:

In this case, it is undisputed that Meridian issued all four steps of discipline to [Grievant] before his termination. It is also undisputed that [Grievant] received not only one, but two, written warning notices — one employee warning record on November 22, 2010, and one warning coupled with probation on April 7, 2011 — within the twelve-month period before his termination on June 14, 2011. The language in the CBA and Personnel Administrative Note #59 is unambiguous, and says nothing about requiring all four steps to be taken in a single twelve-month period. At most, when these documents are read together, they unambiguously require that Meridian follow its four steps of discipline before discharging an employee, and that the employee receive at least one of those written warning notices within twelve months of his or her termination. These requirements were satisfied by Meridian in this case.
Arbitrator Hill's conclusion that the four disciplinary steps must occur within twelve months was impermissible because he "was not construing an ambiguous contract term, but rather was imposing a new obligation upon [Meridian]. ..." Keebler Co. v. Milk Drivers & Dairy Emps. Union, Local No. 471,
80 F.3d 284, 288 (8th Cir. 1996). The parties' agreement simply does not allow for this interpretation. I conclude that the arbitrator's determination that the four steps in Personnel Administrative Note #59 must be performed within twelve months does not draw its essence from the parties' CBA.

Friday, January 25, 2013

Most Favored Nation provision violation remedies

On May 3, 2012, Arbitrator Rosemary Townley issued a decision finding that the New York District Council of Carpenters breached the Most Favored Nation provision of its cba with the Manufacturing Woodworkers Association. That award is discussed here.  Arbitrator Townley has now issued her decision on the remedy phase of that dispute.

Arbitrator Townley has rejected the MWA's claim for almost  60 million dollars in damages, which the Union claimed is a sum approaching its total net assets. The MWA calculated that number using a damages period running from that date the Union entered into the more favorable contract. It also sought a return of excess contributions to the Union Funds, as well as reimbursement for excess payroll taxes paid and an award of one million dollars in punitive damages.

Arbitrator Townley determined that she was without authority under the cba to address the issue of the Union Funds, since the cba directed those disputes to a different panel of arbitrators. She also concluded that the cba limited consequential damages to "conforming" the agreement to the more favorable terms, and contained no language authorizing an award of punitive damages.

While noting that her original award had stated that the MWA was entitled to retroactive damages  "to April 1, 2009" (the date the more favorable contract was entered into), Arbitrator Townley found "after a full review of the damages evidence, and the arguments in the post hearing briefs" that that conclusion was premature and inconsistent with the parties agreement to bifurcate the damages phase of the hearing from the merits. Reviewing the issue anew, she concluded that retroactive damages should be limited to a period beginning 30 days prior to the filing of the grievance (i.e. 30 days prior to July 12, 2011).

However the Arbitrator did conclude (subject to verification of the calculation) that an award of slightly in excess of 8 million dollars was appropriate.

Local 157blogspot has the Arbitrator's remedy award here.

Monday, January 21, 2013

Failure to follow earlier award not basis to set aside second award

Tower Rock Stone Company has failed in its efforts to set aside an award of Arbitrator Ruben Armendariz reinstating a grievant who had been dismissed for an alleged "Class 4" offense of "deliberately or recklessly misusing, destroying or damaging Company property or the property of any employee." Tower Rock Stone Company v. Quarry and Allied Workers Local No. 830. 

Pursuant to the cba, an employee found to have engaged in a Class 4 offense was subject to immediate discharge. Arbitrator Armendariz found that the grievant, who had lost control of a haul truck while reaching down for a bottle of milk, instead was guilty of a Class 3 offense of "careless misuse" of Company property for which a suspension was the appropriate penalty. The Arbitrator determined that a Class 4 offense required a showing of intent, which he found absent, and also found that the Company policy allowing employees to eat and drink in their vehicles was a contributing factor in the accident.

Tower Rock sought to set aside the award, arguing it was inconsistent with a prior award addressing what it believed were similar circumstances (although involving a different union), in which Arbitrator Josef Rohlik had upheld a termination finding that an employee who lost control of his truck while reaching for a soda was guilty of a Class 4 offense. According to Arbitrator Rohlik "To conclude otherwise would implicitly require to add an actual injury or the intent to cause damage to a Class 4 Offense of this kind. That element is not required by the negotiated provision in question."

Relying on the Eighth Circuits decision in Trailways, Inc. v. Trailways, Inc. Joint Council, Tower Rock maintained that the prior award was binding on Arbitrator Armendariz and that he exceeded his authority by failing to follow it.

The District Court for the Eastern District of Missouri rejected this position, concluding:

 In contrast to the second Trailways arbitrator [who had essentially ignored the prior award, concluding that it represented a minority position], in this case Armendariz acknowledged the relevant "law of the shop" by discussing Tower Rock's past disciplinary enforcement practices. He decided the issue to which the Tower Rock and Local 830 had stipulated, rather than reformulating it, and he carefully interpreted the relevant CBA language. The facts arbitrated by Rohlik in 2000 may have been similar, but they did not involve the same transaction, the same grievant-employee, or even the same union.
In Trailways, the Eighth Circuit recognized that "there may be situations where an arbitrator will refuse to defer to a prior award involving the same issue." ... One of those situations, it found, could be when the prior decision "was made without the benefit of some important and relevant . . . considerations." Id. at 1425 n.16 (quoting F. Elkouri & E. Elkouri, How Arbitration Works 428 (BNA 4th ed. 1985)). This is exactly the conclusion that Armendariz came to: that Rohlik had not had the opportunity to consider the effect of Tower Rock's eating policy.Far from supporting Tower Rock's position, the Trailways court acknowledged that "an arbitrator generally has the power to determine whether a prior award is to be given preclusive effect," especially when that arbitrator thoroughly explains his or her decision to break
from a prior award. Id. at 1426 (if an arbitrator "does not accord any precedential effect to a prior award in a case like this," he or she should "at least explain the reasons for refusing to do so"). Accord Am. Nat. Can Co. v. United Steelworkers of Am., 120 F.3d 886
, 890-93 (8th Cir. 1997) (discussing in detail what Trailways did and did not hold and enforcing arbitration award where arbitrator discussed prior interpretations of the same contractual language before departing from those awards).[footnotes omitted].

The court also rejected the Company's claim that the arbitrator had improperly relied on equitable principles in overturning the dismissal, noting that "The Eight Circuit has repeatedly upheld awards where arbitrators considered such factors as part of a 'just cause' analysis."

Friday, January 18, 2013

Arbitrator concludes "functus officio" precludes reconsideration of award

Arbitrator Gary Axon has rejected a Motion for Reconsideration filed by the University of Washington, seeking to have him reconsider and vacate his award upholding a grievance filed by the UAW. Arbitrator Axon had found that the University violated its cba with the UAW by imposing certain fees on academic student employees. In seeking reconsideration, the University argued that the award contravened state statutes and public policy. The Union objected to the Motion, arguing that the Arbitrator lacked the authority to reconsider the award after it was issued.

Agreeing with the Union, Arbitrator Axon concluded:

I find the Employer’s Motion to reconsider, and vacate the Award is a challenge to the merits of the Award. I hold that under the doctrine of functus officio this Arbitrator has no power to reconsider and vacate the Award once it has been published.

The Arbitrator noted that his retention of jurisdiction to resolve any questions about the remedy ordered did not contravene the doctrine since it did not go to the merits of the dispute. Accordingly, the Arbitrator rejected the University's Motion but continued his retention of jurisdiction for remedial questions.

UAW Local 4121 links to both the original and supplemental awards, and the parties' briefs here.

Monday, January 14, 2013

Slow computer system results in extra compensation for teachers

The UFT in New York has substantially prevailed in an arbitration arising from the Department of Education's implementation of a "Special Education Student Information System" (SESIS). The Union claimed that the system, used in connection with the development of Individualized Education Plans for special education students, was plagued with deficiencies and operating difficulties which caused teachers  to have to spend time outside of their normal work day entering date into the system.
 According to Arbitrator Jay Siegal "[t]he gravamen of the dispute was that the Department had extended the workday by failing to provide adequate training, equipment, access to equipment, support, etc., for SESIS-related work."

Arbitrator Siegal rejected the Union's claim that the Department was required to negotiate with the Union before implementing the system, but agreed with the Union that many teachers were required to spend time outside their work day utilizing the system. After reviewing the voluminous testimony, Arbitrator Siegal concluded:

      in exchange for the salaries the Department agreed to pay teachers, the Department has the right to expect teachers to work their full contract day. However, the Department does not have the right to assign teachers tasks that routinely require them to work beyond their contractual work day. Article 6 [setting forth  the hours of work] has been violated because SESIS duties took too long to complete within the work day.

As a remedy, he ordered the Department to compensate teachers for documented time spent using the SESIS system outside their normal work day or on weekends. While noting that the evidence did show that some teachers attempted to utilize the system during their lunch periods, or spent time attempting to fax data in, he determined that requiring the Department to attempt to ascertain the precise times a particular teacher was engaged in these activities would be "unduly burdensome and will result in endless argument and disagreement over some issues that are nearly impossible to determine." In lieu of a monetary remedy for these claims, the Arbitrator encouraged the parties to spend their time jointly analyzing and negotiating over methods to improve the efficiency of the system.

While finding that the implementation of the SESIS system was within the scope of the Department's management's rights, and was not a mandatory subject of bargaining, he did conclude that the Department was obliged to engage in "impact" negotiation with the Union concerning the impact on affected employees of the system's implementation.

The Arbitrator agreed to assist the parties in these negotiations if the parties mutually agreed to have him work in that capacity.

GothamSchools links to the Arbitrator's award here.

Friday, January 11, 2013

Labor Arbitration in the News

Police officer's reinstatement overturned by court

According to a report in the Tulsa World, a Tulsa County judge has overturned an award of Arbitrator Edward Valverde (discussed here) reinstating a police officer whose employment had been terminated for alleged use of excessive force. According to the report, the Judge concluded that reinstating the officer would pose "a special risk of injury, physical and psychological, to citizens and, if he is allowed reinstatement, the department will be faced with explaining why Owasso allows abusive conduct by its officers, which is against the law." Owasso officer's return would pose 'special risk'. Arbitrator Valverde had found that while the officer had used unreasonable and unnecessary force , it did not rise to the level of "excessive force". The article links to a video of the incident in issue.

City failed to establish police officer's excessive use of force

Arbitrator Sharon Imes has upheld the grievance filed on behalf of a City of Omaha police  officer who had been terminated for alleged excessive use of force. The grievant had been involved, with other officers, in the arrest of an individual at a hospital where a crowd had gathered after the shooting of a reputed gang member. A number of officers were involved in the arrest, and grievant and another officer were ultimately terminated after an internal investigation and a review of a video capturing part of the arrest. While the Police Chief maintained that grievant had punched and kicked the arrestee, using unnecessary  and excessive force, the Arbitrator concluded that the City had failed to meet its burden of establishing that grievant had in fact engaged in inappropriate conduct. The Arbitrator further concluded that the video of the arrest was inconclusive. Arbitrator Imes had previously sustained a grievance filed by another officer also terminated for alleged use of excessive force in the same arrest. reports on the decision, Omaha officer fired in controversial arrest to return to force, and links to the awards in both cases here. The report also links to a video of the arrest.

Arbitrator rejects claim of excessive force by Bloomington, IN police officer

Arbitrator Jeanne Vonhof has sustained in large part a grievance filed by a Bloomington police officer who had been terminated for allegedly trying to choke a special needs child, according to a report in Arbitrator: BPD officer fired after incident with special-needs student should be rehired. According to the report, Arbitrator Vonhof concluded that the evidence failed to establish improper use of excessive force, but upheld a one day suspension for the officer's failure to file a report on the incident.

Monday, January 7, 2013

Fifth Circuit limits "implied finding" of just cause

In a recent decision, Albemarle Corp. v. United Steelworkers, the Fifth Circuit has reversed a District Court decision setting aside an arbitrator's award reinstating two employees. The arbitrator had concluded that while the employees had violated the employer's safety rules, termination was too severe a penalty and instead converted the discipline to a suspension and ordered the employees reinstated without back pay.

The employer argued, and the District Court agreed, that once the arbitrator had made the factual determination that the employees had violated the safety rule he was without authority to modify the penalty. The employer relied on a prior Fifth Circuit decision, E.I. DuPont de Nemours and Co. v. Local 900 of the International Chemical Workers Union, which had concluded that  "where an arbitrator implicitly finds that just cause exists, he need not recite the operative phrase 'just cause'."
The Albemarle court found this decision inapplicable.  Unlike its prior decisions, which had held that "when authority to impose a lesser sanction cannot be arguably inferred from a CBA, the arbitrator may not exceed the scope of the CBA to fashion one", the court noted that the contract here did not define just cause, and did not contain a schedule of offenses which would result in termination.

Rejecting the effort to set aside the award, the court concluded:

The arbitrator, having been given the matter to arbitrate, made no implicit or explicit finding that Albemarle had entertained cause enough to discharge the Grievants; rather, he explicitly concluded the opposite, that "discharge was not appropriate," and that there was instead "cause for the Employer to issue discipline." We cannot say that he erred in so concluding, let alone that he was not "even arguably construing or applying the contract and acting within the scope of his authority."  ***
Albemarle's position is also in tension with our precedent stating that explicating broad CBA terms like "cause," when left undefined by contract, is the arbitrator's charge. Amalgamated Meat Cutters & Butcher Workmen of N. Am., Dist. Local No. 540 v. Neuhoff Bros. Packers, Inc., 481 F.2d 817, 820 (5th Cir. 1973) ("Rather, by using only the general words `proper cause,' [the agreement] leaves the question of what is a good reason for discharge—the ultimate disciplinary measure—for subsequent interpretation."). Had the Company wished to remove doubt as to whether safety violations like the Grievants' met the criteria for cause to terminate, it had only "to bargain for a specific list of violations that will be considered sufficient grounds for discharge" in the CBA.
The Court also rejected the employers argument that enforcing the award would violate public policy, finding "Albemarle does not articulate how the CBA, if read by the arbitrator to permit reinstating the Grievants after sanctioning them fourteen months lost wages, violates public policy."

Update: The day after issuing the decision in Albemarle, another panel of the Fifth Circuit, including two of the three judges who decided Albemarle, issued a decision in Horton Automatics v. The Industrial Division of the CWA , affirming the lower court's decision setting aside an arbitrator's award which it determined had "implicitly, found that Horton had cause to discharge" the grievant. The cba in issue provided that "In determining whether the Company had cause to impose the aggrieved disciplinary action, the Arbitrator shall be limited to deciding whether a published rule or regulation which formed the discipline was in fact reasonable and violated by the employee. ...[A]ny departure or deviation by the arbitrator from the expressed terms , or requirements, set forth in this Article shall render the Arbitrators award null and void and of no effect." The Arbitrator had found that grievant had violated a reasonable safety rule, but concluded that evidence of disparate treatment rendered the termination unjust. Relying on the contract language, and its prior decisions, the Circuit concluded that arbitrator exceeded his authority by modifying the penalty imposed.