Sunday, March 24, 2013

APWU prevails in contracting arbitration

Arbitrator Stephen Goldberg has, in large part, sustained a grievance filed by APWU claiming the Postal Service misinterpreted contractual obligations concerning contracting.

The parties cba provides that before contracting certain work the Postal Service must weigh a number of factors, including public interest, cost, efficiency, availability of equipment, and qualifications of employees.

 Rejecting the position taken by the USPS that as long as it considered these factors it could contract work even if the cost of doing so is greater than keeping the work in house, Arbitrator Goldberg concluded that:

the Contracting MOU states:

             It is understood that if the service can be performed at a cost equal to or less than that of conntract service, when a fair comparison is made of all reasonable costs, the work will be performed in-house.

The Postal Service can no longer justify contracting out work that would be less expensive to keep in house on the ground that it has given due consideration to cost as well as the other Article 32.1 or 32.2 factors. To be sure, each of those factors must be considered, but If factors other than cost do not rule out keeping work in house, and the cost of keeping work in house would be less than contracting out, both the text and the bargaining history of the Contracting MOU require that the work be kept in house. 


The APWU reports on the case, Landmark Arbitration Award Reshapes California PVS Sumcontracting, and links to Arbitrator Goldberg's award here.




Sunday, March 17, 2013

City improperly terminated Union release agreement

A substantial reduction in the size of the police force did not constitute an emergency justifying the termination of the Local President's full time release from duty, according to an award by Arbitrator Joseph Licata.

The City and  PBA Local  were parties to a cba that provided:

The City agrees to full union release to the PBA President.  ...  A shirt and tie or suitable casual attire may be substituted for a police uniform. However, the uniform of the day shall be readily available in the event of an emergency that requires the PBA President to be utilized.  ...

This language had been incorporated into the cba as a result of an interest arbitration which adopted the Union's proposal verbatim.

 The City maintained that a significant reduction in funding, and a resulting layoff of approximately one third of the department, constituted an emergency justifying the reassignment of the PBA President to field duties. It  noted the increase in rapes, robberies and shootings in the city, as well as its frequent approval of President's release to attend to Union duties notwithstanding his assignment to field operations.

Rejecting the City's position, the Arbitrator concluded:

Whether by examining standard tools of contractual construction or the "emergency doctrine" as commonly understood in the labor profession, the City's position is untenable....

Looking to contractual intent, the Arbitrator observed:

Emergencies were understood as temporary events subject to Emergency Mobilization plans. As examples, emergencies included anticipated natural disasters, anticipated special events, e.g. large-scale parades, and unanticipated incidents requiring the temporary full or partial mobilization of the police department, ...

He also noted that the "Emergency Doctrine", a test sometimes used to assess a claim that an emergency privileged the suspension of contractual obligations, failed to support the City's position. Arbitrator Licata referred to a synthesis of the criteria for the doctrine developed by Arbitrator Kessleman;

1) Management must not be responsible for the emergency;
2) The emergency must involve a situation which threatens to impair operations materially;
3) The emergency must be of limited duration; and
4) Any violation or suspension of contractual agreements must be unavoidable and limited to the duration of the emergency.

In light of his determination that neither contractual intent nor the emergency doctrine privileged the City's action, Arbitrator Licata ordered the City to reassign the President to full union release duties, and to only deviate from that as an exception based upon an emergency necessitating his mobilization.

PBA Local 11 links to Arbitrator Licata's award here.

Sunday, March 10, 2013

Workplace Bullying

Bullying  continues to emerge as a problem in the workplace, and has been identified as potentially the next major battleground in employment law. Growing Push to Halt Workplace Bullying (Sam Hananel at AP). Professor David Yamada's blog, Minding the Workplace, covers this issue extensively, and he recently summarized some of the legislative activity focused on enacting a Healthy Workplace bill in various states. Healthy Workplace Bill: March 2013 Update.  At least one management lawyer, (Michael Fox at Ogletree)  believes The March Towards a Bullying Cause of Action Continues.

In an award arising under an individual employment contract, Arbitrator Tim Bornstein has upheld the termination of the Superintendent of Schools in Groton, Connecticut for behavior found to be, at least in part, bullying.  The Superintendent's contract provided for termination for inefficiency or incompetency, insubordination against reasonable rules or orders of the Board, moral misconduct or "Other due and sufficient cause". According to the award, the Superintendent's termination "was based mainly on allegedly inappropriate conduct towards subordinates."

The School Board's policy provided:

The Groton Public Schools are committed to providing all personnel with a safe and supportive environment in which everyone behaves responsibly and respectfully towards others.
                                                        ...
Threats of harm to self or others, threatening behavior or acts of violence ... shall not be tolerated on district property or at activities under the jurisdiction of the school district. Every employee is expected to deal in a nonthreatening way with students, parents and other staff members.

Arbitrator Bornstein concluded that the evidence established that the Superintendent "violated both the letter and spirit of [the policy] on numerous occasions." Finding the policy "patently reasonable", the Arbitrator concluded that by "threatening, bullying and humiliating subordinates" the Superintendent was insubordinate against reasonable rules of the Board within the meaning of his contract. While finding no moral misconduct, the Arbitrator also concluded that the Superintendent "misused his authority as Superintendent by humiliating and abusing subordinates, all Board employees. Not only was his abusive treatment of subordinates itself grounds for discipline, but also it had the institutional effect of undermining the morale in the Superintendent's office."

Based on the evidence presented, the Arbitrator found "due and sufficient cause" for terminating his contract.

GrotonPatch reports on the decision and links to the arbitrator's award here.

Sunday, March 3, 2013

Police officers, Chain of Command and Discipline

An arbitrator has upheld the discipline imposed on a police officer for his conduct in handling a domestic violence call that also involved the sexual abuse and,ultimately, the rape of a minor.

Three officers responded to a call reporting an incident of domestic violence and observed a shirtless male running from the residence. Grievant and the Sergeant in charge attempted unsuccessfully to locate the fleeing individual. After the wife was transported to the hospital, all of the officers involved left the scene, leaving a fifteen year old babysitter caring for the couple's three young children. The perpetrator was also accused of having sexually abused the fifteen year old, but Grievant's knowledge of that allegation was disputed. After the police left the scene, the perpetrator returned and raped the fifteen year old in front of the couple's eight year old daughter. 

The Sergeant in charge was terminated for his failure to follow the Department's policy on domestic violence, and that termination was upheld by Arbitrator Richard Boulanger. Grievant was suspended for five days for failing to follow policy by leaving the minors alone in the house.

The Union grieved the suspension, asserting that since Grievant was not the officer in charge he had no authority to decide whether continued police presence was necessary and, being without authority, could not carry out the policy he allegedly violated. Responding to the claim that he should have at least "spoken up", the Union asserted that Grievant was the least knowledgeable officer on the scene and was not qualified to question the Sergeant. It noted further that "on rank alone" Grievant could not overrule the Sergeant. According to the Union, Grievant was bound by the principle of Chain of Command and Grievant could not second guess his superior's decision.

Arbitrator Sharon Henderson Ellis rejected these defenses, and denied the grievance. The Arbitrator noted:

The Union makes an undisputed and important point. The principle of chain of command is central to any police operation and failing to follow the chain of command could result in chaos and dysfunction.
Also obvious, however, is the reality that an officer at a crime scene, even when not serving as the officer in charge, cannot act mindlessly, suspending all judgment and common sense simply because he is not the ultimate officer in command.


The Arbitrator determined that the evidence supported a finding that Grievant had been made aware of the claimed sexual abuse of the babysitter prior to leaving, and found the Grievant's conduct "nearly incomprehensible". She concluded that the suspension was "amply supported by just cause." 

The Martha's Vineyard Times reports on both cases, Arbitrator rules Tisbury was justified in firing Sgt. Fiske , and Arbitrator rules Tisbury chief correctly disciplined officer, and links to the awards here and here.