Arbitration Matters

Termination of Union business agent for misuse of confidential information upheld

noreply@blogger.com (John H Curley) — Sun, 19 May 2013 15:22:00 +0000

Grievant was employed by the Minnesota Association of Professional Employees, the Union representing state employees, as a business agent. She was also a member of OPEIU Local 12, the Union representing the MAPE staff. OPEIU and MAPE were engaged in negotiations for a new collective bargaining agreement. After MAPE declared an impasse in negotiations, OPEIU filed both a grievance and an unfair labor practice charge. MAPE sought advice from outside counsel who sent a letter outlining a legal analysis and recommended responses to the grievance and charge. A receptionist opened the letter, realized it related to the OPEIU negotiations and showed it to another OPEIU member. That member in turn made a copy and provided it to the grievant. Grievant proved the copy to the OPEIU shop steward. The steward gave the letter to the OPEIU business agent and it was discussed at a union meeting.

MAPE learned of the incident and conducted an investigation. As a result of the findings, three of the four individuals who had transmitted copies of the letter resigned. Grievant declined to resign and her employment was terminated.

OPEIU grieved the termination and Arbitrator Richard Beens rejected the grievance. Arbitrator Beens concluded that even in the absence of a written rule, grievant knew it was wrong to possess and pass on the legal opinion. He observed "It is entirely reasonable for any employer to expect employees to be honest and trustworthy. It is equally reasonable to believe all employees have a universal understanding of this simple expectation." Rejecting the claim that the discipline was unduly harsh, Arbitrator Beens found that the misconduct went to the heart of the employer-employee relationship and was a serious violation of the level of trust expected of the grievant.

The Arbitrator also rejected reliance on grievant's 17 year work record as a basis for mitigation, noting:

A seventeen-year spotless work record would ordinarily carry great weight when considering levels of discipline. There is no doubt Grievant was a highly valued employee who previously did excellent work for the Employer. On the other hand, vast experience can also cut the other way. Based on her seventeen years as a business agent, contract negotiator, and grievance advocate, Grievant was in the best position to recognize the magnitude of the misconduct. Grievant’s assertions that she, “just wasn’t thinking because she was so busy,” ring hollow. The ultimate test of character is doing the right thing even when you believe no one is looking. In this instance, Grievant failed that test.

Pursuant to the parties' cba, the Arbitrator found the conduct of the grievant amounted to "gross misconduct", justifying the termination notwithstanding the absence of progressive discipline.

Arbitrator Beens award can be found here.

NLRB Defers to Arbitrator's award despite limited remedy

noreply@blogger.com (John H Curley) — Sun, 12 May 2013 14:34:00 +0000

NLRB Acting General Counsel Lafe Solomon has announced his intent to ask the Board to revise its standards for deferring to arbitrators' awards in cases alleging unlawful discrimination because of an employee's union or other protected concerted activity. Guideline Memorandum Concerning Deferral to Arbitral Awards and Grievance Settlements in Section 8(a)(1) and (3) cases. While the Board has not yet ruled on that request, it has recently reaffirmed its decision to defer unless the arbitrator's award is "clearly repugnant" to the Act.

Sheds Jacksonville Medical Center, Inc. involved a claim that the employer had unlawfully dismissed an employee because of her activity on behalf of the Union representing the Center's employees. The employee had been dismissed after the employer concluded that she had distributed a Union flyer on work time and in work areas. The employer claimed that the flyer called for an unauthorized work stoppage. An unfair labor practice charge was filed but the processing of the charge was deferred to the grievance/arbitration procedures. The Union grieved the dismissal, and Arbitrator Richard Potter concluded that while the employee had distributed the flyer on duty time and in a work area as alleged, the Medical Center's enforcement of its no distribution policy was lax, the flyer did not call for a job action, and that the activity was brief and casual and did not require her to sign out for Union duties. However, because he concluded that the employee had lied about the distribution, both during the Medical Center's investigation and at the hearing he ordered her reinstated without back pay.

The Acting General Counsel issued a complaint on the ulp charge and asserted that the deferral to the arbitrator's award was unwarranted. The ALJ disagreed and dismissed that portion of the complaint. On appeal, the Board affirmed the ALJ's decision.The Board expressly declined to consider the Acting General Counsel's request to modify it deferral standards at this time. Applying its traditional standard, it noted that the proceeding was fair and regular, that the parties had agreed to be bound, and that the issue before the Arbitrator was factually parallel to that in the ULP proceeding. The only remaining question was whether the award was "clearly repugnant" to the Act. Addressing the issue of the Arbitrator's decision not to award back pay, the Board observed:

As a general matter, the mere fact that an arbitration award is not coextensive with the Board’s usual remedies does not, without more, make the award clearly repugnant to the Act. ... More specifically, an award that reinstates an employee without full backpay and accrued benefits is not necessarily inconsistent with the Act. Indeed, the Board itself has, at times, decided not to grant those
remedies where doing so would not effectuate the policies of the Act.

The Board noted that while the employee's lie during the employer's investigation might arguably be protected, a lie during the arbitration hearing clearly was not. It concluded:

In making the latter observation, we are mindful that the arbitrator did not state whether he would have denied Palmer backpay based only on her lie at the arbitration hearing, and, from the record before us, it is not possible to say definitively that the arbitrator denied Palmer backpay for conduct at the hearing that was completely unrelated to her arguably protected conduct. Our established policy, however, is to defer to arbitration decisions unless they are “not susceptible to an interpretation consistent with the Act.” Olin, 268 NLRB at 574. Because the arbitrator’s award can be interpreted in a way consistent with the Act (i.e., that backpay was denied because Palmer lied under oath), we find that the arbitrator’s denial of backpay and credit for time lost does not make the award repugnant to the Act. [footnote omitted].

The Board left for another day a decision on the Acting General Counsel's request to modify its deferral procedures.

Mayor improperly interfered with discipline of Fire Captain

noreply@blogger.com (John H Curley) — Sun, 05 May 2013 13:52:00 +0000

Arbitrator Mark Lurie has issued a decision sustaining a grievance filed by a Fire Captain over his demotion to firefighter. Miami-Dade Fire Captain Brian Beckmann authored a Facebook post concerning the Trayvon Martin case. The post was controversial and he was demoted as a result of it. Miami-Dade Fire Captain Demoted Over Trayvon Martin Post Fights For Old Job.

At the arbitration hearing contesting the demotion, the Fire Chief testified that he had initially determined that a 14 day suspension was an appropriate penalty. However before the discipline was imposed he received a call from the Mayor's office, communicating the Mayor's belief that Beckmann's employment should be terminated. In subsequent conversations, the Mayor and the Fire Chief agreed that Beckmann would be demoted to the position of firefighter. The Chief testified that he did not believe he had the authority to go against the Mayor's wishes.

The Union (IAFF Local 1403) challenged this decision. They argued that the County Administrative Orders, incorporated into the cba, vested the disciplinary decision in the Chief alone and that the Chief's decision was improperly countermanded by the Mayor. Agreeing with the Union, Arbitrator Lurie overturned the demotion, concluding:

In sum, Chief Bryson testified that he had decided to suspend Mr. Beckmann but that Mayor Gimenez instructed him to issue either a discharge or demotion, and that he – Bryson – demoted Mr. Beckmann because he believed that, if he were to do otherwise, he would be fired or have to resign. Asked whether he had “objectively determined” that demotion was appropriate, Chief Bryson conspicuously evaded answering the question; he instead testified “I signed the letter.” Mayor Gimenez did not testify that the decision to demote Mr. Beckmann had been solely Captain Bryson’s, and reiterated that he – Mayor Gimenez – possessed the authority to have made the demotion decision himself. The only testimony in which Mayor Gimenez attributed the demotion decision to Captain Bryson was his statement that, “…we agreed on what the appropriate level should be.” Again, A.O 7-16 states that “Approval of the dismissal or demotion of an employee shall continue to be exercised only by a Department Director.”
The Arbitrator finds the testimony of both Mayor Gimenez and Chief Bryson to have been truthful and credible. Based upon their testimony, the Arbitrator finds that Chief Bryson believed that if he did not fire or demote Captain Beckmann, he would be discharged. That constraint upon Chief Bryson’s independent judgment constituted a violation of the parties’ CBA contractual intent for A.O. 7-3 and A.O. 7-16.

The Arbitrator instead determined that Beckman should serve the 14 day suspension initially determined by the Chief to be appropriate.

Noting the significant public interest in the case, the Arbitrator observed:

... there was substantial public attendance at each day of the arbitration hearing. Most of those present were there to see justice done. The Arbitrator has neither the responsibility nor the authority to do justice. Nor was he engaged for that purpose. His role is to apply the terms of the collective bargaining agreement. Were he to stray from that role in pursuit of justice, the victory would be short-lived; his decision would be overturned by the first reviewing court.

Fire Law blog reports on the case here, and links to the Arbitrator's award here.

CT court: Public policy compels termination of nursing home employee, arbitrator's award overturned

noreply@blogger.com (John H Curley) — Sun, 28 Apr 2013 18:49:00 +0000

A Connecticut appeals court has reversed a lower court and has set aside an award reinstating a certified nurse assistant in a nursing home who had been dismissed for failing to timely report suspicion of abuse.

Grievant overheard a conversation between two other employees which she believed related to possible patient abuse. The other employees declined to and peak with her about this, and she attempted on her own to investigate the issue. Unsuccessful in her first attempt, Grievant, a couple of nights later, spoke with a patient who she believed had been the subject of the overheard conversation. Grievant went home and left a voice mail message for the facility's social worker reporting what she had learned and urging the social worker to contact the patient directly.

The facility subsequently conducted an investigation of the claim of abuse, and ultimately disciplined (with suspensions and final warnings) several employees who had either been involved in the incident or had failed to report it. It terminated the employment of Grievant, noting that she had two prior final warnings in her file
.
The Union (New England Health Care Employees Union, District 1199) grieved the termination and an arbitrator reduced the discipline to a 30 day suspension. The arbitrator agreed that there was a strong public policy protecting nursing home residents and that that policy included an obligation to promptly report patient abuse. Nevertheless he concluded that there were mitigating factors, including the fact that Grievant was the only employee who reported the incident (albeit in an untimely manner) and the concern that terminating an employee who did report, even if late, would create a disincentive to reporting.

The employer sought unsuccessfully to vacate the award as contrary to public policy. The appellate court reversed, concluding:

The award, requiring the reinstatement of one who, in a sensitive position of physical authority over such a vulnerable population, has by her prior record of related disciplinary actions and two prior final warnings demonstrated her inability to meet the demands of the public policy of protection and reporting, violates that policy because, in the very words of the arbitrator, ‘‘any delay in reporting by a staff member leaves the residents at risk of possible further abuse by the alleged perpetrator; corrective action by [the plaintiff] to assure resident well-being inevitably is delayed if reporting by staff is delayed.’’

While noting that it was not holding that a single incident of patient abuse necessarily compelled termination, the Court noted that "because of a confluence of factors arising under the facts and circumstances of this case" the award mandating reinstatement violated public policy.
The dissent maintained that the majority's opinion exceeded the appropriated scope of review and failed to give appropriate weight to the arbitrator's conclusion. The dissent noted:

The majority’s general invocation of the public policy relating to protection of patients from abuse ... has the unfortunate result of diminishing this court’s respect for and deference to the private arbitration process, and it also results in an expansion of the public policy exception from its intended narrow application in these circumstances. Taken to its logical conclusion, the majority sets forth a rule that requires an employer to terminate the employment of any employee who does not report a suspicion of elder abuse immediately, without consideration of any mitigating factors or whether the employer itself would be in violation of any public policy. ... I thus conclude that the broad expansion of this narrow exception is unwarranted, and not in the interest of employers or employees in this health care sector.

The Court's opinion can be found here, the dissent here.

Police discipline and Public Policy

noreply@blogger.com (John H Curley) — Sun, 21 Apr 2013 23:54:00 +0000

Portland, OR police officer Ron Frashour was dismissed following his involvement in a fatal shooting of an individual who turned out to be unarmed. The City claimed that he had used excessive and unnecessary force in violation of the City's deadly force policies. Arbitrator Jane Wilkinson, in an award discussed here, upheld a grievance filed on his behalf and ordered him reinstated. Arbitrator Wilkinson concluded that Officer Frashour did not act unreasonably under the circumstances, and that there was no evidence that he had violated any City policy.

The award prompted controversy, Crowd protests arbitrator's decision to re-hire cop, and the City announced it would not comply with the award. The City maintained that the award was inconsistent with an Oregon statute providing "any arbitration award that orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct shall comply with public policy requirements as clearly defined in statutes or judicial decisions....

In response to a charge filed by the Portland Police Association, the Oregon Employment Relations Board found that the City had committed an unfair labor practice by refusing to comply with the award. It rejected the City's public policy argument, noting that Arbitrator Wilkinson had found as a fact that Officer Frashour had not engaged in misconduct.

The City has now appealed that decision and briefs have been filed in the dispute. Portland Mercury: Police Union Answers City in Appeal over Frashour reinstatement. The City maintains that the Arbitrator improperly failed to give deference to the City's conclusion that its policies were violated.

The City argues in its appeal:

ERB erroneously began and ended its inquiry with the Arbitrator's finding that Officer Frashour did not engage in misconduct. It was the Arbitrator's refusal to afford deference to the determination of the Chief of Police that Officer Frashour's killing of an unarmed, non-resisting, emotionally distraught man, on whose welfare the police were trying to check, violated the City's deadly force policies, that failed to comply with public policy requirements. In other words, it was not so much what the Arbitrator decided, but rather how she decided it that violated public policy.

In its reply, the Portland Police Association argues:

The City suggests that if the Arbitrator agrees with the City's conclusion that Officer Frashour violated City use of force policies, then the Arbitrator's award is consistent with public policy. But if the Arbitrator disagrees with the City and holds that Officer Frashour did not violate any City policy, then her award violates public policy because she did not defer to the City's decision. In other words, the City argues that it can make an incorrect disciplinary decision, one that might be motivated by political concerns or driven by an inadequate investigation, and that its decision must be upheld by an arbitrator.

The Portland Mercury links to the briefs filed by the City (here) and the PPA (here).

Professor Henry Drummonds has written an article discussing the public policy exception to enforcement of arbitration awards. That article is discussed here.

Award reinstating police officer without License to Carry weapon confirmed

noreply@blogger.com (John H Curley) — Sun, 14 Apr 2013 04:16:00 +0000

As noted in an earlier post, Arbitrator Phillip Dunn upheld the termination of a police officer who lost his license to carry a weapon. Police officer who lost license to carry weapon properly terminated . According to a report in the Worcester Telegram, a Massachusetts Superior Court has recently confirmed an arbitrator's award reinstating an officer who had apparently similarly been denied renewal of a license to carry. Ruling backs former Worcester officer accused of pointing gun at teens.
According to the report, the judge concluded:

[T]he arbitrator found that the city did not have just cause to terminate [the officer] because he did not have a license to carry a firearm ...The arbitrator noted that the city had not shown that possession of a license to carry a firearm was a necessary job requirement for a Worcester police officer. The arbitrator further found that even if possession of a license to carry a firearm was a requirement of the job, the officer could waive such a requirement, and he had done so in the past.

The officer had been terminated for allegedly pointing a handgun at three teenagers in his neighborhood while off duty. During the investigation of that incident his license to carry expired and the Police Chief declined to renew it.

Arbitrator Richard Higgins overturned that earlier termination, and the Massachusetts Appeals Court recently rejected the City's claim that the award violated public policy. O'Brien v. New England Police Benevolent Association, Local 911.

New England PBA links to Arbitrator Richard Higgins' award here. The Daily Worcesteria links to the award of Arbitrator Roberta Golick on the LTC issue here.

Eighth Circuit rejects award finding just cause but awarding remedy.

noreply@blogger.com (John H Curley) — Sun, 07 Apr 2013 15:23:00 +0000

A majority of the Eight Circuit has affirmed a District Court's decision vacating an arbitrator's award, concluding that he had found that the employer had just cause for the termination of the grievant but nevertheless reinstated him without back pay. Northern States Power Co. d/b/a Xcel Energy v. IBEW, Local 160.

The Company had terminated the employment of grievant after learning through a background check that he had been convicted of "possession of a pornographic work involving a minor." The terms of grievant's probation included a prohibition on contact with minors. The Company maintained that they could not guarantee that grievant would have no contact with minors during his employment and, as a result, terminated his employment.

The Arbitrator concluded:

[T]he Local’s grievance is denied in part and sustained in part. To the extent that Mr. Snow was convicted of a serious crime that raises some very legitimate concerns on the part of the Management going forward, they have demonstrated justification for their decision. At the same time however, the Union has presented convincing evidence which sets forth a number of factors that existed which ultimately favor the imposition of a penalty less than the Grievant's dismissal.

The Company sought to set aside the award, and the District Court granted the employer's motion. The Eight Circuit affirmed, observing:

Here, the language of the arbitrator’s decision—specifically that NSP had “demonstrated justification” for its decision to terminate Snow—is sufficient to show that the arbitrator found the termination was supported by “just cause.” Having answered the first submitted question in the affirmative, the arbitrator had no authority to address the second question or to fashion a remedy different than the termination. Therefore, the district court properly vacated the arbitrator’s award for reaching beyond his authority under the CBA.

In reaching this conclusion, the Court noted with approval decisions from other circuits, including the Fifth Circuit's "implied just cause" cases (discussed here), holding that having found just cause an arbitrator was without authority to reduce the penalty.

The dissenting opinion argued that the arbitrator had made no finding of just cause, and that when read in context the arbitrator's award "cannot fairly be read to favor NSP".

APWU prevails in contracting arbitration

noreply@blogger.com (John H Curley) — Sun, 24 Mar 2013 19:36:00 +0000

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.

City improperly terminated Union release agreement

noreply@blogger.com (John H Curley) — Sun, 17 Mar 2013 17:06:00 +0000

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.

Workplace Bullying

noreply@blogger.com (John H Curley) — Sun, 10 Mar 2013 19:41:00 +0000

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.

Police officers, Chain of Command and Discipline

noreply@blogger.com (John H Curley) — Sun, 03 Mar 2013 18:52:00 +0000

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.

A noose, cluelessness and public policy

noreply@blogger.com (John H Curley) — Sun, 24 Feb 2013 19:29:00 +0000

The Supreme Court of Washington has refused to overturn an arbitrator's award reducing the discipline of an employee who had hung a noose in the workplace from termination to a twenty day suspension.

The arbitrator found that the Grievant had hung the noose as a prank directed at an older white coworker. An African American employee saw the noose and reported it. The arbitrator recognized the demeaning and hostile nature of a display of a noose in the workplace, and the employer's legitimate interest in expecting employees to be aware of that effect and to refrain from such a display. Nevertheless, he found Grievant's "impression" of a noose was not racial, but rather derived from "Cowboys and Indians." In this regard the arbitrator found grievant "more clueless than racist." In light of this conclusion, and grievant's 12 years of service with no history of performance problems, the arbitrator concluded that termination was too severe a penalty and reduced the discipline to a twenty day suspension.

The employer sought to vacate the award, contending that the award violated public policy, and the superior court granted the motion to vacate. The lower court determined that the award violated the public policy against harassment in the workplace. It then went on to order its own remedy, which included a six month suspension, a letter of apology, attendance at diversity and harassment training and immediate termination for any violation of the employer's anti harassment policy in the next four years.

On appeal, (discussed here), the Appellate Court agreed that the discipline imposed was too lenient, and improperly minimized society's interest in preventing this type of conduct and interfered with the employer's ability "to discharge its duty" to prevent future acts of discrimination. The court determined, however, that the lower court erred in imposing its own remedy and should have remanded the case back to the arbitrator.

The Union appealed this decision and the Washington Supreme Court reversed. The Supreme Court first noted that "We only review the arbitrator's award and not the underlying conduct." While noting the "terrible and tragic history" history of the noose, and condemning "in the strongest terms possible" the threats and racial violence symbolized by it, the Court concluded that it was bound by the arbitrator's findings of fact. The Court noted:

As a result, we must accept the arbitrator's findings regarding [Grievant's] understanding of the
symbolism of the noose, as well as the findings on the effect of the noose on the other
employees in the workplace. When we take into account the specific circumstances of
this case, we cannot say that a 20-day unpaid suspension would not provide sufficient
discipline to cause this or other employees to understand the serious nature of a noose
in the workplace and thus prevent a similar incident in the future.
We reiterate that we find [Grievant's] actions to be ignorant and unacceptable and
that our analysis in this case is limited to determining whether the arbitrator's award is
so lenient that it violates the public policy against racial harassment. We do not
determine whether a 20-day suspension is the appropriate punishment for [Grievant's] actions or whether he violated antidiscrimination laws either of which would be analyzed under a very different legal framework.

Accordingly, the Court reversed the decision of the lower court and held that the arbitrator's award was not contrary to public policy. It further "took the opportunity" to clarify (as had the Appellate Court), that a trial court vacating an arbitrator's award cannot impose its own remedy but should remand the matter to the arbitrator for further proceedings.

The Court's decision in International Union of Operating Engineers, Local 286 v. Port of Seattle can be found here.

New York High Court: Positive drug test doesn't compel termination

noreply@blogger.com (John H Curley) — Mon, 18 Feb 2013 00:23:00 +0000

The New York Court of Appeals has rejected an effort by the Shenendowa Central School District Board of Education to vacate an arbitration award reinstating a bus driver who failed a drug test. Grievant, a ten year employee, had tested positive for marijuana after a random drug test. The arbitrator concluded that termination was too severe a penalty, and ordered grievant reinstated without back pay, subject to an evaluation by a substance abuse professional and a negative drug test.

The Court initially noted that the parties' cba did not require a penalty of termination in these circumstances, and observed that the District did not have a zero tolerance policy.

The Court also rejected a suggestion that the award violated public policy, concluding:

The ... determination that reinstatement with conditions was the appropriate penalty did not violate public policy (see Eastern Associated Coal Corp. v Mine Workers, 531 US 57 [2000]). "That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty" (City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 920 [2011]).

The Court's opinion, In the Matter of the Arbitration between Shenendowa Central School District Board of Education and Civil Service Employees Association, Inc., Local 100 AFSCME, can be found here.

Comcast unsuccessful in effort to set aside award

noreply@blogger.com (John H Curley) — Sun, 10 Feb 2013 15:49:00 +0000

Courthouse News Service reports on a decision rejecting Comcast's efforts to set aside an arbitrator's award. Comcast claimed that the arbitrator exceeded his authority by reading into the cba a provision that had been eliminated. Back Pay for Broadband-Certified Comcast Staff.

Comcast and IBEW Local 827 were parties to a cba providing a 5% pay increase for employees possessing a broadband certification (BBC). That provision was included in Appendix B of the parties' agreement. Appendix B also included wage rate schedules, wage increases, and a ratification bonus. During negotiations for a successor agreement, the union ultimately agreed to the company's final proposal. Paragraph 6 of that proposal began "Replace Appendix B with the following..." and set forth new pay scales and wage increases. It did not include any reference to a broadband certification. While initially transmitting a draft of the new agreement which continued the BBC provision, Comcast claimed this was an error, and transmitted a new draft without the BBC increase provision. When Comcast refused to pay the BBC increase the Union grieved, and ultimately arbitrated the non payment.

The arbitrator found that the phrase "Replace Appendix B with the following" was ambiguous concerning the BBC issue, and sustained the grievance. Comcast sought to vacate that award, but the District Court in NJ rejected that claim. Noting the arbitrator's careful review of the record and the parties bargaining history, and the limited scope of review of an arbitrator's award, the court confirmed the award, observing:

The Court finds that while the Arbitrator did not have the authority to modify the MOA,
he was called upon to determine whether the Parties intended to eliminate the BBC Increase
provision from the CBA. In his decision, the Arbitrator reasoned that, based on the structure of
the MOA, the word "replace" "under no circumstances means literally replace."' ...The Arbitrator stated that "[ o ]n its face, what follows in paragraph 6 is not language fit to be inserted into a collective bargaining agreement. Rather, it is a rough outline of what was to be included in the new Appendix B, with much additional clarification and reorganization required."

The court concluded that "the Arbitrator's reasoning shows how the interpretation can rationally be derived from the agreement when considering all of the language of the MOA and its context."

Courthouse News links to the court's decision here.

Police officer who lost license to carry weapon properly terminated

noreply@blogger.com (John H Curley) — Mon, 04 Feb 2013 14:42:00 +0000

Arbitrator Phillip Dunn has upheld the termination of a police officer who lost his license to carry a weapon. The Quincy, Mass. Chief of Police had revoked grievant's license to carry, apparently for incidents arising from a dispute with his neighbors. Patriot Ledger: Quincy police chief revokes officer's gun permit. The City thereafter terminated the employment of grievant for, among other reasons, the revocation of his license to carry a weapon. The officer appealed that revocation to the Quincy District Court, and the court upheld the Chief's actions. Following the court's decision the parties agreed to submit to the arbitrator the issue of whether the license revocation, standing alone, provided just cause for the termination.

The City maintained that it had a longstanding policy requiring officers to posses a valid license to carry, and argued that the arbitrator was without jurisdiction to review the Chief's decision to revoke the license. The Quincy Police Patrol Officer's Association noted that there was a separate process which would have allowed the grievant to carry a weapon, and that the mere revocation of the license was insufficient to support the termination.

Refusing to reverse the termination, Arbitrator Dunn concluded that "the record convincingly establishes that the Department has consistently maintained for years the requirement that all Quincy police officers must posses a license to carry, as a condition of continued employment." The arbitrator recognized that the authority of the Chief to decide grievant's suitability for a license, with review of that decision exclusively in the District Court on an abuse of discretion standard "does leave the employee with a distinctly less robust avenue for challenging his/her termination based upon a loss of LTC ...", but concluded that he did not have the authority to review that decision.

Accordingly, Arbitrator Dunn concluded:

The City for decades has required that the police officers in Quincy maintain a valid LTC, as a condition of continuing employment. The chief revoked the grievant's license [sic] LTC, the grievant appealed to the District Court, and the Court affirmed the chief's revocation action. Given these circumstances, the City had just cause to terminate the grievant's employment, without consideration of the other bases for the termination.

PatriotLedger.com reports on the decision, Arbitrator sides with Quincy in cop firing, and links to Arbitrator Dunn's award here.

Update:For a similar dispute with a different result see Award reinstating police officer without License to Carry weapon confirmed.

Court rules reinstatement of police oficer who lied violates public policy

noreply@blogger.com (John H Curley) — Fri, 01 Feb 2013 14:59:00 +0000

Grievant was employed as a police officer by the town of Stratford, CT. He suffered from epileptic seizures, and experienced a seizure while on duty, striking two parked cars with his police vehicle. After his personal physician returned him to duty the town referred him to a neurologist for a determination of the conditions of return. The neurologist cleared grievant to return to work with the proviso that he be allowed to call out sick whenever he felt signs of an impending seizure. Reviewing the neurologists report, the town's hr director "discovered discrepancies" between the report and the medical information supplied to the town by grievant's personal physician. Contrary to the information obtained from his personal physician, grievant had apparently not informed the neurologist of two previous seizures, and had denied a history of alcohol "use/abuse". The town ultimately terminated grievant's employment for lying during an independent medical exam.

The union grieved the termination, and an arbitration panel reinstated grievant without back pay. The panel concluded that grievant's lying, while serious, was understandable, and concluded that the termination was excessive. The town sought to vacate the award as contrary to public policy, but the lower court disagreed, noting the limited standard of review of arbitration awards and the absence of "authority which requires dismissal of a uniformed police officer, in situations where that officer tells a deliberate untruth."

The town appealed, and the appellate court reversed, ordering the case remanded with direction to grant the town's motion to vacate. The court first concluded that prior case law had concluded that "there is a clear public policy in Connecticut ... that it is against public policy for a police officer to lie." Turning to the facts as found by the arbitration panel, the court then concluded that the award was contrary to that policy, noting:

Here, the union concedes that [Grievant] intentionally lied during a medical examination into the conditions that would allow him safely to return to work and to perform his duties as a police officer. The arbitration panel’s determination to reinstate [him] in spite of this conduct runs contrary to the well-defined public policy against intentional dishonesty by police officers in connection with their employment. ... Accordingly, the award cannot stand.

The court's decision (Town of Stratford v. American Federation of State, County, and Municipal, Employees, Council 15, Local 407) can be found here.

Arbitrator erred in reading discipline limitation into contract

noreply@blogger.com (John H Curley) — Mon, 28 Jan 2013 13:22:00 +0000

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.

Most Favored Nation provision violation remedies

noreply@blogger.com (John H Curley) — Fri, 25 Jan 2013 13:02:00 +0000

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.

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

noreply@blogger.com (John H Curley) — Mon, 21 Jan 2013 12:35:00 +0000

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."

Arbitrator concludes "functus officio" precludes reconsideration of award

noreply@blogger.com (John H Curley) — Fri, 18 Jan 2013 14:41:00 +0000

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.

Slow computer system results in extra compensation for teachers

noreply@blogger.com (John H Curley) — Mon, 14 Jan 2013 13:32:00 +0000

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.

Labor Arbitration in the News

noreply@blogger.com (John H Curley) — Fri, 11 Jan 2013 12:34:00 +0000

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. Omaha.com 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 Pantagraph.com. 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.

Fifth Circuit limits "implied finding" of just cause

noreply@blogger.com (John H Curley) — Mon, 07 Jan 2013 15:02:00 +0000

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.

Employer must meet and confer before correcting error

noreply@blogger.com (John H Curley) — Fri, 21 Dec 2012 14:01:00 +0000

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.

Enforcement of award denied; no noncompliance shown

noreply@blogger.com (John H Curley) — Mon, 17 Dec 2012 13:02:00 +0000

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.