Sunday, October 14, 2018

Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment

Arbitrator awarded back pay but no reinstatement - rejects request to reconsider decision

As noted in an earlier post, Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay, Arbitrator Eric Lindauer found that the City of West Linn, Oregon had just cause to terminate the employment of a police officer because his racially charged Facebook posts violated the City's Social Media policy and because he "could reasonably be perceived as having racially biased views that were disrespectful of African-Americans." The Arbitrator found that the postings "brought discredit to himself, the Department, and the City of West Linn ... ."

 However, because he further found that the City failed to promptly address the issue and "must bear some responsibility for its failure to take active steps, as required by Department Policy, to require [grievant] to remove the offending content from his facebook page," he ordered the City to provide back pay to the grievant from the time of his termination until the date of the Arbitrator's decision.

The City filed a request with the Arbitrator for reconsideration of that backpay order. The City claimed the Arbitrator's back pay remedy exceeded the authority granted to the Arbitrator in the parties' cba and the issue submitted to him by the parties. The stipulated issue was:

Whether the City of West Linn had just cause to terminate the grievant ... . If not, what is the appropriate remedy?

 The City argued that once the Arbitrator found just cause for termination he was without authority to award back pay.

Arbitrator Landauer rejected the City's request. Citing judicial approval of the need for flexibility in remedies, and recognition of the use of the admittedly unusual remedy of back pay without reinstatement  in several published texts, he noted:

Based on these findings which reflected serious procedural failings on the City’s part, the Arbitrator could have overturned the Grievant's termination and reinstated him. However, based on the serious nature of the Grievant's Facebook postings, the Arbitrator did not find this to be an appropriate solution to the problem. Instead, the Arbitrator crafted a remedy that would allow the termination to stand while also awarding back pay to the Grievant, which appropriate [sic] rejected the City's failure to correct [grievant's] inappropriate Facebook postings and instead allowed them to continue.

Arbitrator Landauer also clarified that his award of back pay was limited to lost wages, not including PERS contributions or fringe benefits. He noted that since the termination was upheld, grievant was not entitled to receive fringe benefits that would ordinarily have accrued as part of a back pay award. 

Arbitrator Lindauer's Decision on the Motion for Reconsideration can be found here.

Arbitrator's reliance on external law

Arbitrator George Fleischli largely sustained a grievance filed by IBEW Local 51 alleging that Ameren Illinois Company dismissed an employee without just cause. His award can be found  here. The grievant's employment was terminated for claimed violation of the Company's Workplace Violence Policy, including having a weapon on Company premises. Arbitrator Fleischli found that while grievant did violate the "letter" of the Company rule by having a weapon locked in his vehicle on Company property, the rule was "illegal and unenforceable" against grievant because of the provisions of the Illinois Concealed Carry Act.

The Arbitrator noted a "longstanding debate" among arbitrator's on when, if ever, it is appropriate to consider outside law in connection with the interpretation and application of a cba where the cba "does not purport to incorporate outside law." However he concluded that the Union was not asking him to ignore any provision of the cba (distinguishing the Seventh Circuit's decision in Roadmaster Corp. v. Prod. and Maint. Emp. Local 504) and that the law was clear and served to prevent the Company from applying the rule against grievant because he was in possession of a concealed carry license.

Ameren sought to vacate the award, arguing that the award was in excess of the arbitrator's authority in that it did not draw its essence from the cba. The District Court granted that request, (here) concluding:
Despite finding that the Grievant's possession of a firearm in his vehicle technically violated the Policy ... , the Arbitrator determined that the Company could not enforce its Workplace Violence Policy in light of the Concealed Carry Act. Award at 44. The Court recognizes that the Arbitrator did not specifically find good cause to terminate pursuant to the Workplace Violence Policy. See Arch Ill., 85 F.3d at 1293 (noting that a court can refuse to enforce the award if the arbitrator found just cause to discharge but then stated "something to the effect of `fairness dictates'" that the employee should not have been discharged). Nonetheless, the Arbitrator's award unambiguously reflects that the Arbitrator based his decision on noncontractual grounds. Id. (a court cannot reject an award unless the arbitrator's decision "unambiguously reflect[s] that the arbitrator based his decision on noncontractual grounds").

In this case, the Arbitrator unambiguously based his decision on his interpretation of an external law, the Concealed Carry Act. Nothing in the parties' Agreement allowed the Arbitrator to consider external law. In fact, the Agreement specifically provided that the Arbitrator could not "amend, delete from[,] or add" to the Agreement. Agreement Art. III, Sec. 2. The Arbitrator's award exceeded his authority because the parties' Agreement did not allow the Arbitrator to consider external law.

On the Union's appeal, the Seventh Circuit has reversed the District Court and enforced the Arbitrator's award. Ameren Illinois Company v. IBEW, Local Union 51  The Court did so, however, despite its conclusion that the Arbitrator's effort to distinguish  the Seventh Circuit decision in Roadmaster was a "distinction ... without a difference." It found language in the cba, "overlooked" by both the Arbitrator and the District Court, which incorporated external law into the cba and "firmly establishes the intent of the parties to bring external law such as the Concealed Carry Act within the scope of the bargain."

In light of this conclusion, it found that courts have "no further role to play" in reviewing the terms of the award or whether the Arbitrator correctly applied the law. Accordingly it enforced the Arbitrator's award. 

Social media, law enforcement officers and the First Amendment

Several recent cases address these issues.

 In Rice County Minnesota and Minnesota Public Employees Association, a case arising under the Minnesota Veteran's Preference Act, Arbitrator Jeffrey Jacobs, sitting as Hearing Officer, denied a grievance challenge the demotion of the veteran. The veteran was employed as a Sergeant with the Rice County Sheriff's Department. The demotion to Deputy arose out of certain comments made by the veteran in response to newspaper and social media reports concerning a settlement arising from the shooting of Philando Castile. The statements are summarized in Arbitrator Jacob's award:

On November 28, 2017 the Minneapolis Star and Tribune newspaper ran a story regarding a settlement between the City of St. Anthony Minnesota and Ms. Diamond Reynolds, who was Mr. Castile’s girlfriend and was in the car at the time he was shot and killed by a St. Anthony Police Officer. The story of Mr. Castile’s homicide was widely reported in the print and broadcast media and was widely discussed on social media. There was also a highly publicized trial of the officer who shot Mr. Castile.
There was a claim made by Ms. Reynolds and the matter was settled for a large sum of money. The Star and Tribune story was about that settlement and showed a picture of Ms. Reynolds leaving a building that ran along with the story. In response to that story and on the Star and Tribune’s Twitter page, the veteran posted the following message: “She’ll have that [i.e. the money from the settlement] spent in 6 months on crack cocaine.” There was another post only seconds later that read: “I hope she loses all her State and County Aid now that she has this cash.” This was posted under the veteran’s Twitter handle ... . The evidence also showed that he repeated his earlier comments approximately 20 minutes later with a post at 10:15 p.m. that read as follows: “She needs to come off County and State Aid now that she has some cash. It’ll be gone in 6 months on crack cocaine.” There was no mention in this post either regarding the use of public money or the settlement itself nor of the need to protect the Ms. Reynolds child. It was, as discussed herein, a statement made without knowing Ms. Reynolds and based on assumptions the veteran made regarding her status as a recipient of such aid and her YouTube posts showing her smoking what appears to be a marijuana joint. [footnotes omitted]

Applying the standard imposed by the Act, which Arbitrator Jacobs found equivalent to just cause, the Arbitrator found no basis to upset the Sheriff's decision. In doing so he rejected the veteran's claim that his comments were protected by the First Amendment. Analyzing the case law on the First Amendment rights of public employees, Arbitrator Jacob concluded:

The question is whether his posts were protected by the First Amendment based on this unique record. For all the reasons set forth above, even if one gets to the question of the First Amendment and the balancing test required by Pickering, these posts were not shown to be protected and that they violated clear policies in place.

In Clackamas County Peace Oficers' Association and City of West Linn (in which the remedy issue is discussed above) Arbitrator Lindauer similarly rejected a claim that grievant's Facebook postings were protected by the First Amendment, finding:
In evaluating an individual's free speech rights in the context of employment, theArbitrator must balance the parties' interests relative to the subject speech:

          *** speech that is disruptive of the workplace or demoralizing and reflects the expression of a              private complaint is not protected speech, whereas commenting on a matter of public interest is   protected speech but must be balanced against the government's interest in the effective and efficient  fulfillment of its responsibilities to the public."

                                                                                               Elkouri and Elkouri, 
                                                                                              How Arbitration Works, 
                                                                                               (BNA 8th Ed.) Page 19-3

Police officers, as public employees, are held to an even higher standard. "Public service employees are often held to a higher standard because of the public employer's interest in maintaining the public trust." Id., at 15-17. In their post-hearing briefs, both parties cite case law and other authorities requiring an analysis of whether the employee's interest in the speech outweighs the employer's interests in maintaining efficient operations and its reputation. This is the crux of the First Amendment analysis in this case: Did [grievant's] interests in his Facebook postings outweigh the City's interests in maintaining efficient operations and the public trust? In the Arbitrator's opinion, the answer is no.
In the Arbitrator's opinion, [grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.

In Veronica Cedillo and The City of Mission, Texas, Arbitrator Richard R Brann overturned the indefinite suspension (i.e. termination) of an officer, finding the termination "excessive under the circumstances of her good-faith exercise of her First Amendment Rights and her otherwise exemplary work record." The decision was reported in the progresstimes Arbitrator: Mission shouldn't have fired cop for contacting 'Anonymous' Facebook page

The officer, based on information she had seen in a group message among other officers and a conversation she had had with another officer, and after receiving an assurance that she would remain anonymous, used Facebook Messenger to send a private Facebook message to an entity known as "Anonymous RGV."  The message read:

Well, I just don't wanna get in trouble, but just so y'all know... The current mayor, Beto Salinas was wasted/drunk and crashed inside the city limits...single vehicle accident at about 3am this morning. However, it is unknown if he called the chief of police directly & had the Sgt. take care of it. So, he was allowed to call someone to go pick him up & was not charged/arrested for DWI. He was already picked up, by the time the wrecker arrived at the scene. The officer only did an accident report... which is totally unfair/wrong!!

Despite the assurance of confidentiality, the Mayor learned of the Facebook message and asked the Chef to "check into it." Officer Cedillo was interviewed and acknowledged sending the message.

Officer Cedillo appealed the indefinite suspension that was ultimately imposed, arguing that her reporting of what she believed to be a possible attempt to cover up a criminal violation was a matter of public concern protected by the First Amendment.

Noting that the case was a "challenging" one, Arbitrator Brann analyzed the case in light of prevailing law. He found that the Officer had not used any confidential information in making her claim, that she did not make the report in her official capacity, that while her report did contain some inaccuracies (including the allegation that the Mayor was "wasted/drunk") it was made in good faith. He concluded:

In light of all the evidence, ... the delicate balance required under the Supreme Court's Pickering must be struck in favor of Officer Cedillo. 

Nevertheless, while finding the "gist" of Officer Cedillo's message was protected speech, her hyperbole and statements that went beyond her knowledge justified some penalty. Accordingly he ordered her reinstatement with back pay less a ten day suspension. 

Sunday, October 7, 2018

Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report

The Massachusetts Supreme Judicial Court has rejected a public policy challenge to the reinstatement of a police officer found by an arbitrator to have made "intentionally misleading ...but less than intentionally false" statements in a police report. City of Pittsfield v. Local 447 International Brotherhood of Police Officers.

Grievant had arrested an individual who had been identified by a supermarket's security department as having  engaged in shoplifting. He placed the individual in the back of his cruiser, In his report of the incident, grievant wrote that the individual began trashing about and so "for her safety" he removed her from the vehicle and placed her on the ground to control her. He also noted that store security wanted to get a photo of her as part of its normal process.

In his award, Arbitrator Michael Stutz found that grievant's report was inaccurate and that the three words in issue "for her safety," were "[u]ntrue, intentionally misleading, and cause for discipline, but less than intentionally false."  He concluded that grievant removed the individual from the vehicle to allow store security to photograph her and that his report was not a mistake or an error, but "knowingly inaccurate." He found:

the grievant wanted to conceal the real reason for removing the prisoner by falsely reporting that it was safety-related, and that the reason for this was the public disturbance that resulted when he removed, photographed and returned the prisoner to his car. The grievant should have waited to take the photograph outside public view at the station. He could have gotten assistance from his nearby colleague. I believe the grievant referred to safety to deflect the readers of his report away from his bad judgement. This intentional inaccuracy violated the grievant’s obligation to be absolutely truthful.

Nevertheless, Arbitrator Stutz found termination too severe, and ordered grievant reinstated with a three day suspension.

The City sought to vacate the award, arguing that "any lie, be it big or small, absolutely disqualifies a police officer from continuing to serve in his position, and that any act of dishonesty, no matter the circumstances, requires dismissal."

The Superior Court rejected this request, and the Massachusetts Supreme Judicial Court accepted he case on direct review. The trial court opinion, and the parties briefs before the SJC are discussed at Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?

In its decision, the SJC refused to adopt a bright line rule that any dishonesty by a police officer would compel termination. In doing so it noted grievant's 'intentionally misleading" statements "did not lead to a wrongful arrest or prosecution, or result in any deprivation of liberty or denial of civil rights."

Accepting the arbitrator's factual conclusion that grievant's statement was not made with the intent "to impede, obstruct, or otherwise interfere with any criminal investigation or proceeding," but was instead an effort to avoid discipline for his poor judgment, the Court found no public policy requiring the termination of the grievant. Reinforcing the limited nature of its decision, the Court concluded:

In making these employment decisions, police chiefs who are responsible for maintaining the integrity of their departments and for preserving public trust in their officers need clear lines. It requires commitment and courage for a police chief to terminate the employment of a police officer; it is generally easier to avoid doing so. Termination of an officer's employment means that the police department almost invariably will need to incur the expense of arbitration, including the substantial attorney's fees from litigating such an arbitration. And if the arbitrator disagrees with the decision to terminate, the officer will be reinstated and the police department will be required to make the officer whole with respect to lost benefits under the collective bargaining agreement, including back pay, compensation for lost income from overtime and details, and the return of seniority rights. If there are no clear public policy lines supporting termination, it is extremely difficult for a police chief to risk such a decision where it might be undone by an arbitrator whose decision cannot be reversed by a court even when it is plainly wrong as a matter of fact or as a matter of law.

Where a police chief decides to terminate an officer in circumstances in which the officer's false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy. We affirm the arbitrator's award here only because it did not cross this public policy line.

In a footnote, the Court acknowledged that the local District Attorney had informed the City that he would no longer call grievant as a witness in any criminal matter. Finding this "very troubling" the Court noted that this was not part of either the City's or the arbitrator's decision. It noted further however,

... although it is required to abide by the results of this arbitration, the city is, of course, not prohibited from pursuing any additional appropriate discipline based on the district attorney's letter or any other newly acquired information

Sunday, September 30, 2018

Arbitrator finds allegations insufficient to support termination even if proven, orders reinstatement before hearing.

The Nassau County (NY) District Attorney's office has challenged a decision of Arbitrator John Sands ordering the reinstatement of  Investigator (and Local Union President) Michael Falzanaro. Nassau DA challenges ruling that her office improperly disclosed wiretap

The DA's office had a wiretap in place in connection with an investigation of municipal corruption. In August 2016, while monitoring certain calls pursuant to an eavesdropping warrant, investigators overhead the subjects of the warrant mention grievant's name. The DA's office applied for and received permission to amend the original warrant to include grievant and others for violating NY Penal Law prohibiting divulging an Eavesdropping Warrant. In June 2017, a grand jury returned sealed indictments against several individuals, not including grievant. On June 29, 2017 the DA's Office terminated grievant's employment.

The termination was based on four specific charges. Those charges read:

1. On or about July 16, 2016 Chief Investigator Daniel Rizzo via a communication email to all Investigators assigned to the Nassau County District Attorney's Office, instructed that only assigned investigators, having received wiretap monitoring instructions relative to Confidential Investigation PC 16-56, were to be permitted in the hallway outside of the monitoring location in the basement of 272 Old Country Rd., Mineola NY On or about August 22, 2016, Michael Falzarano was in violation of that directive. Again, on or about August 29, 2016, Michael Falzarano was observed in the vicinity of the hallway just outside the monitoring location. Both August incidents were in violation of explicit instructions to avoid the location used to intercept and monitor communications authorized by court-ordered wiretaps.

2. On or about August 15, 2016, Michael Falzarano did have a conversation with a target of Confidential Investigation PC 16-56, in which Michael Falzarano did, in sum and substance, advise the target that the Public Corruption Bureau was conducting an investigation utilizing wiretaps. The substance of that conversation was overheard in a court ordered wiretap, on or about August 18, 2016.

3. On or about March 24, 2017, at a meeting of the Nassau County District Attorney's Investigators, at which Michael Falzarano was present, said investigators were instructed to make every effort to avoid any contact with  either witnesses or juror assembled for the Special Grand Jury to hear evidence for case referenced above. On or about April 5, 2017, Investigator Michael Falzarano disobeyed such directives and was in the vicinity of the Special Grand Jury and a witness for that proceeding.

4. On or about and between August 15, 2016 and February 13, 2017, without good cause and contrary to directives, Investigator Falzarano engaged in a course of conduct seeking to continually interact with investigators assigned to the above referenced investigation in an effort to elicit information regarding the details of the investigation and to influence the investigators' conduct by referencing prior favorable labor relations between the NCDA investigators staff and the targets.

Ruling on the Union's Motion to Dismiss, Arbitrator Sands agreed with the Union that the employer violated NY law by divulging the existence and content of the eavesdropping warrant to other than law enforcement officers, including the County's outside labor counsel, the grievant, the Union and Union counsel, and the Arbitrator. He rejected the County's argument that the subsequent approval of the County's ex party request for permission to disclose justified its actions, noting that the request did not cure the earlier violation and allowed the County to "cherry pick" the items it wanted to disclose. He noted further that the legality of the warrant had not yet been resolved in the criminal proceedings that arose out of the indictments, and that Falzanaro had not been indicted in the criminal proceeding, either because "NCDA did in fact seek Falzanaro's indictment but failed to convince the grand jury or (b) that NCDA did not seek his indictment because it did not believe its evidence provided sufficient support for that effort."  Accordingly, and concluding that evidence unrelated to the warrant could have, but did not, form the basis for discipline (whether or not ultimately deemed supported by just cause) at the time it occurred rather than ten months later, he granted the Union's motion to dismiss Charges 1 and 2.

Regarding Charges 3 and 4, Arbitrator Sands observed that they related to matters well after the intercepted communications and "it is not clear in either case that the charge rests on excluded evidence or its fruits." He concluded that "I accordingly cannot dismiss them out of hand without having received evidence to the contrary, which I would expect a hearing to address."

Nevertheless, he found that the allegations did not support grievant's immediate termination. On Charge 3, he noted "Even if NCDA were to prove that grievant's having been 'in the vicinity' violated its instruction, I cannot see how that would support the discharge penalty NCDA imposed."

Similarly, with regard to Charge 4 he found:

Given grievant's role as president and the issue of NCDA's potential discrimination in assignments of IPBA Board members, his interacting with bargaining unit members concerning that subject matter and referring to positive labor relations issues would appear to fall within the ambit of protected union activity. To sustain this charge as an appropriate exercise of managerial authority NCDA would have to adduce affirmative evidence of grievant's improper intent to interfere with the effectiveness of NCDA's investigation or operation or his actions’ having actually done so. Charge 4 does not reflect such an allegation; indeed, the grand jury did in fact issue the indictments NCDA sought notwithstanding anything grievant had done. I accordingly conclude that Charge 4 too does not support the immediate termination of grievant's employment that NCDA imposed. I shall therefore direct NCDA to restore grievant to employment with full back pay and benefits during the pendency of this proceeding. 

The Nassau County DA is quoted in the article linked above as describing the award as ""really unconscionable." Her office has argued to the Court that Falzanaro wasn't fired until after the probe was over, and that the eavesdropping evidence was no longer secret.

Sunday, September 23, 2018

Staffing issues, contracting out bargaining unit work, and a duty to bargain

Each of these topics is the subject of recent  court action.

In MultiCare Health Systems v. Washington State Nurses Association, the Ninth Circuit reversed a District Court order vacating certain remedies ordered in an award of Arbitrator Douglas P. Hammond. The Union's grievance claimed that Multicare violated the terms of a settlement agreement requiring MultiCare to provide employees with  a 15 minute break periods for every four hours worked. Arbitrator Hammond sustained the grievance and ordered MultiCare to cease using a "buddy system" as a means of providing breaks and to "staff, schedule and assign a nurse to serve as a reserve or float nurse with the precise assignment of relieving other scheduled nurses for their authorized breaks."

MultiCare sought to vacate the award, asserting that the arbitrator exceeded his authority and that the issue of increased staffing had been raised by the Union during negotiations leading to the cba and had been rejected. The District Court (here) vacated that portion of the Arbitrator's award precluding the use of the buddy system as inconsistent with the rejection of that proposal during negotiations. On the staffing issue, the Court remanded the matter to the Arbitrator for further consideration, noting:

The Court requested additional briefing on the interpretation of the term "increased staffing" because the record "does not adequately reflect what `increased staffing' entails." Dkt. 33 at 6. Based on the parties' responses, the Court concludes that interpretation of the term is a matter for the Arbitrator. It is unclear whether this issue alone is sufficient to vacate the Award, but, because the Court is vacating the Award on the previous issue, the Court simply points out that additional interpretation would assist a reviewing Court in determining whether the remedy derives its essence from the parties' agreements. In other words, additional consideration and discussion linking the remedy to terms of the contract may be helpful for future review.

 On the Union's appeal, the Ninth Circuit reversed, noting on the "buddy system" issue:

The district court erred in the application of those principles when it determined that the essence of the Agreement did not allow the Arbitrator to exclude use of the buddy system. The Arbitrator did find that MultiCare wanted the Agreement to specifically permit use of the buddy system. However, he also found that WSNA opposed inclusion of that specific provision, and it was left out. By contrast, the Agreement did provide that whatever method was used, nurses were to have their fifteen-minute breaks and that the staffing plan could not be violated. The Arbitrator determined that, as a matter of fact, the buddy system was unable to meet those conditions in practice and was "nonviable." Indeed, the buddy system violated the very purpose (essence) of the Agreement. The district court erred when it overruled the Arbitrator's decision to enjoin the practice that violated the Agreement.

The Court also rejected the District Court's decision on the staffing question, concluding:

The district court opined that "increased staffing" was itself an ambiguous phrase that should have been considered by the Arbitrator. If it is an ambiguous phrase, the Arbitrator implicitly resolved the ambiguity when he made his award. In any event, if the basis of an award is ambiguous, that does not permit a district court to vacate the award itself. ...  Again, we see no basis for overturning the Arbitrator's award.

In PPL Electric Utilities Corporation v. International Brotherhood of Electrical Workers Local 1600 the District Court for the Eastern District of Pennsylvania rejected both the procedural and substantive objections of PPL's complaint seeking to vacate the award of Arbitrator John M. Skonier.

 Arbitrator Skonier upheld a grievance filed by the Union claiming that PPL violated its cba by contracting out bargaining unit work. Arbitrator Skonier found that PPL "failed to live up to the promises it made to the Union" when it negotiated a Letter of Understanding that was made part of its cba. PPL maintained that it had complied with all of the obligations of the LOA and that its actions were consistent with the cba. It also denied making any guarantee of increased union membership or assurance that it would not contract work. Arbitrator Skonier ordered the Company to "cease and desist from violating" the LOA and to provide the Union "with a sum of money equivalent to what the initiation fees and dues would be as though eight employees had been hired."

In its complaint to vacate the award, PPL alleged that the arbitrator "displayed manifest disregard for the parties agreement," relied on erroneous cost projections, and "based the Award on his own moral judgment and notion of fairness."

Rejecting the Company's claim, the District Court concluded that the Arbitrator's reliance on parol evidence was not improper: 

The Arbitrator also relied on PPL's representations in previous negotiation discussions as PPL's "indicia of intent" to conclude PPL violated Exhibit P. Specifically, the Arbitrator found PPL represented to Local 1600 it would increase the number of bargaining unit positions and reduce contractors. ... "PPL's prior representations were offered to Local 1600 to explain PPL's intent when making the proposal [resulting] in the [Letter of Understanding]." (Id.) PPL argues the Arbitrator's use of prior communications not included in the final agreement violates the Parol Evidence Rule and the Arbitrator's use of these communications was unnecessary given the CBA's unambiguity. ... But, our Court of Appeals clearly states it is appropriate to look beyond the face of a CBA given it is not an ordinary contract for the purchase of goods and services. Southeastern Pennsylvania Transp. Authority v. Brotherhood of R.R. Signalmen, 882 F.2d 778, 784 (3d Cir. 1989). Our Court of Appeals and several courts of appeals explicitly recognize that it is entirely appropriate to look to parol evidence in the context of interpreting collective bargaining agreements.

The Court also rejected the challenge to the Arbitrator's finding that the Company had not established that its actions were consistent with the cba, observing:

In establishing the four preconditions required before subcontracting bargaining unit work (Article II, Section 5D) were interrelated with Article VI, Section 1D, and Exhibit P, the Arbitrator concluded there were limits to PPL's subcontracting right and stated: "the parties negotiated the contracting provision to allow the Company to contract under certain conditions, while allowing the Union to protect bargaining unit work and membership."...  So, while PPL may subcontract bargaining unit work — as evidenced by its subcontracts with PPL Solutions and NCO — PPL's right to subcontract is not unlimited. Based on PPL's limited right, the Arbitrator was correct to balance PPL's subcontracting rights with the rights of Local 1600 employees.

Finding the Arbitrator's award drew its essence from the terms of the cba,  the Court declined to disturb his decision.  [A similar dispute involving Rockwell Collins and IBEW is addressed in Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies]

In Citgo Petroleum Corp. v. United Steelworkers Union, Local No.7-517, Citgo seeks to vacate an award by Arbitrator Alan J. Cook. The Steelworkers grievance claimed that Citgo's use of outside contractors violated the terms of its cba. The management rights provision of the cba recognized the Company's right to "hire contractors" but the contract also provided that the Company wouldn't displace any unit employee due to the use of contractors.

Arbitrator Cook found that the Union had failed to show that the use of contractors in this instance violated the terms of the contract or caused harm to the bargaining unit. He noted that he was not free to ignore the language of the cba and that if he did ignore "the clear and unambiguous terms of the Contract, the Award could be set aside by a court of law." Nevertheless, his opinion continued:

 However, there is another aspect of this case that must be considered. The National Labor Relations Act places on employers a mandatory duty to bargain with authorized employee representatives on subjects that include rates of pay, wages, hours of employment and other conditions of employment (29 U.S.C. Sec. 151 et seq.).

He ordered Citgo to bargain with the union over the issue of the transfer to contractors of work performed previously by the bargaining unit performing work and retained jurisdiction "for ninety days of the date of this Award to give the parties whatever assistance they may need in implementing the terms of the Award."

In its complaint  Citgo asserts that the Arbitrator "had no authority to address this or any other statutory issue" and that his "erroneous conclusion" that Citgo violated a duty to bargain did not draw its essence from the cba. 

Monday, September 3, 2018

Recent Awards - Insubordination, out-of-title work, protected activities, and untruthfulness

Police officer's insubordinate action didn't justify termination

Arbitrator Don B. Hays modified the discipline imposed on a San Antonio police officer who had been accused of insubordination. Grievant was schedule to retire in July of 2017. He planned to utilize his accrued time of to carry him through that date, and to work full time at another job until his retirement became effective. Outside employment required the approval of the Chief. He began his outside employment in September of 2016 with the permission if the department. However, his request to continue that outside employment during 2017 was denied. Believing he had  "constitutional right" to continue to engage in the outside employment grievant "defiantly continued" his outside work despite the denial of permission from the department. Ultimately the Chief placed grievant on "indefinite suspension", effectively terminating his employment.

Finding grievant's conduct insubordinate, Arbitrator Hays concluded that termination was too severe. Arbitrator Hays explained:

Although appellant's reason for his refusal appears to be resourceful, it cannot be realistically
compared to a subordinate's justifiable refusal to strictly obey a supervisory directive based on legitimate safety concerns and/or the risk of irreparable harm. Appellant's potential loss of the USAA job and associated essential outside (second) income does not qualify as a legitimate excuse for such insubordinate actions.

On this occasion [Grievant]  was proven to have acted in a patently and punishable insubordinate fashion. However such clearly uncharacteristic behavior appears from the credible and preponderant evidence to have been an “isolated act," mistakenly undertaken in good faith by an experienced, long serviced highly qualified and devoted SAPD police captain; one who had absolutely no proven personality tendencies or disciplinary history which legitimately questions this loyal officer's allegiance to SAPD authority or Chief McManus. While we in no way find [grievant's] isolated insubordinate behavior, to be forgivable, as discussed hereinabove when trying to determine an appropriate disciplinary response, we find Chief McManus' imposition of "summary termination" to be deficient of what we deemed to be essential evidentiary support.

Arbitrator Hay's award can be found here.

Compensation for out-of title-pay

Arbitrator Richard Curreri has upheld a grievance filed by the Warertown(NY) Professional Firefighters Association seeking compensation for demoted Captains. The Union claimed that the former Captains were still expected to perform their former duties but were not being compensated appropriately for performing what was now out-of-title work. Arbitrator Curreri found "an explicit or implicit assignment of the demoted Captains to the work they previously performed ...."He rejected the argument of the City that any informal expectations were not the same as an "assignment" His award can be found here.

Discrimination because of union activities 

  Two recent awards involve discipline claimed to be because of the grievants' union activities.

 In IAFF, Local 1693 and City of Holyoke, Arbitrator Mary Ellen Shea sustained a grievance challenging the suspension and demotion of a Fire Department Captain, and Local Union President, after an investigation into his actions at the scene of a fatal fire.  Arbitrator Shea rejected the City's claim that the investigation was part of a "routine" post incident analysis, and found that "the evidence demonstrates that the investigative procedures and the investigative report ... were not adequate or sufficiently complete to prove the allegations" against the grievant. Concluding that the investigation was a pretext, she found that the City had violated the cba's prohibition on discrimination because of Union activities (in this case grievant's comments in the press critical of the Mayor's and Chief's decisions concerning decisions concerning staffing, see e.g. Questions of response to Holyoke fire arise following brownout of engine)

In Wilkes-Barre Police Benevolent Association and City of Wilkes-Barre, Arbitrator Thomas Leonard sustained a grievance, overturning the discipline of the President and Vice President of the local PBA. The discipline arose because of comments on the PBA's Facebook page critical of certain decisions of the Mayor and police management. Rejecting the City's claim that he postings "violated numerous sections of the department's general orders, Arbitrator Leonard concluded:

This is a case where the City has taken disciplinary action against [grievants] for their exercise of protected rights. While the City does have a managerial interest in maintaining the appropriate access to police reports and having its orders followed, the PBA also has rights. The PBA postings, whoever made them, stated a sincere employee interest in safety of officers. The postings may have been harshly worded, but the law gives leeway to union officials in such instances. The City has not proven that the Facebook postings violated its General Order 1.11 on Social Media and
Networking. The policy itself allows the PBA to use Facebook to engage in “legitimate labor endeavors and/or business." Therefore, even though the Facebook postings were critical of Chief Lendacky and Commander Foy, sometimes in forceful terms, the postings were done with the interests of the officers' safety in mind, which is certainly a legitimate labor endeavor of the PBA in its role as the exclusive representative of the police officers of the City of Wilkes-Barre

Officer's "Untruthfulness" proved just cause for termination

Arbitrator John Barnard denied a grievance filed on behalf of a San Antonio police officer. Grievant had been placed on "indefinite suspension "(i.e dismissed) for allegedly being untruthful during an investigation of his activities in connection with performing inspections of commercial vehicles during his off duty time. Finding merit to some, but not all, of the charges, Arbitrator Barnard noted:

The cornerstone of any sworn police officer is that such officer is to be truthful at all times. That didn't happen here, and as such, there is no alternative but to uphold the indefinite suspension of an officer such as [grievant] who betrays the trust of both the department and the general; public, for whom he is trusted to serve. 

Arbitrator Barnard's award can be found here.

Sunday, August 26, 2018

Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies

Chicago Tribune, LLC v. Teamsters Local Union No. 727 (ND Ill.)

The Chicago Tribune seeks to vacate an Award of Arbitrator Amedeo Greco. Arbitrator Greco upheld a grievance claiming that the Company refused to pay employees "gap time" pay the Union claimed was required by the cba and past practice. The Tribune's Complaint asserts that the Arbitrator exceeded his authority and improperly modified the cba "when he gave legal effect to a past practice which finds no support in the clear and unambiguous terms of the CBA."  According to the complaint:

Despite the fact that the CBA does not provide for the payment of ten hour gap time pay to a driver for performing work during the driver's scheduled day or night shift, the Arbitrator wrote such a requirement into the CBA and disregarded the limitations on his authority.

Rockwell Collins, Inc. v. International Brotherhood of Electrical Workers Local 1362 (ND Iowa)

Arbitrator Robert Grey sustained a grievance filed by IBEW Local 1362, concluding that Rockwell Collins violated its CBA when it unilaterally outsourced the Custodian and Led Custodian classifications at its Cedar Rapids facility. (Award) Rockwell Collin’s  has filed a Complainseeking to vacate the award, alleging that the arbitrator "ignored or went beyond the plain text of the collective bargaining agreement and essentially rewrote the collective bargaining agreement creating requirements on Rockwell Collins that did not exist in the agreement as negotiated by the parties."

The Harrison County Coal Company v. United Mine Workers and United Mine Workers Local 1501 (ND WVa)

The Company seeks to vacate an award of Arbitrator Thomas Hewitt sustaining a grievance claiming that the Company had improperly outsourced the installation of a belt drive. The Arbitrator rejected the Company's argument that the installation of a "new, never before used' belt drive was construction work which it could contract out. Arbitrator Hewitt concluded that "the building, installation and moving of belt drives is a totally protected activity at this mine ... ." The Company's  complaint  asserts that the Arbitrator exceeded the scope of his authority, that his award failed to draw its essence from the cba, and that his award of monetary remedies in the circumstances of the case was contrary to "binding arbitral precedent."'

The Monongalia Coal Company Mine Workers and United Mine Workers Local Union 1701

United Mine Workers and United Mine Workers Local Union 1701 v.The Monongalia Coal Company

These two cases involve the same parties, but address different disputes.

Monongalia County Coal Company seeks to vacate an  Award of Arbitrator Ralph Colflesh, finding the Company breached its contract with the UMW when it outsourced certain cabling work at its mine. He found, however, that no bargaining unit employee lost wages as a result because they were either working when the work was performed or had declined the opportunity to work.

Nevertheless, in light of his finding of a contract violation he “join[ed] Arbitrator Drucker in awarding damages to to the Union for this breach, and concur with the principle implied in her award that in general every sustained grievance must have some remedy.” In contrast  to Arbitrator Drucker, he declined to award compensation to employees, noting his belief that employees should not be rewarded for not working when they had the opportunity.” (Arbitrator Drucker’s award can be found here; the Company’s complaint to vacate that award here.)

Instead he ordered the Company to pay the Union its costs for preparing and presenting the grievance, including any legal fees incurred in the grievance preparation, as well as the per hour cost of the union advocate who presented the case at arbitration. In its Complaint  to vacate the award, the Company alleges that the Arbitrator “expressly rejected binding precedent” and exceed his authority by ordering payment of the Union's expenses which the contract required be borne by the union.

In its Complaint, the UMW seeks to vacate an Award of Arbitrator William Babiskin denying a contracting grievance. The Arbitrator declined to address the merits of the grievance because he found that there was no financial loss to any employee. Arbitrator Babiskin noted: " I am a strong believer in the principle of 'no harm, no foul." The Union's complaint asserts that the Arbitrator ignored "the plain language" of the agreement, denied the Union a fair hearing, and instead relied on his own notions of industrial justice to deny the grievance.

Sunday, August 19, 2018

Postal Service ordered to restore Union leave for partisan political activity

Arbitrator Stephen Goldberg has issued an award finding that the Postal Service breached its agreement with the American Postal Workers Union (APWU) when it unilaterally made changes to its Employee and Labor Relations Manual to prohibit Union Leave without pay for purposes of engaging in partisan political activity.

The Service's action was triggered by a report of the Office of Special Counsel asserting that leave for that purpose was prohibited by the Hatch Act. (OSC Report

The OSC investigation was triggered by a complaint submitted by Senator Ron Johnson, Chair of the Senate Committee on Homeland Security and Government Affairs. The Senator had received information from a constituent that thePostal Service was incurring unnecessary overtime costs by granting LWOP for employees to participate in election activities sponsored by the AFL-CIO. These activities included door-to-door canvassing, phone banks, and "get out the vote" efforts.

The OSC recommended that the Postal Service expressly prohibit use of LWOP for partisan political activity.

Following OSC's recommendation, the Postal Service modified its ELRM to specifically prohibit use of LWOP for partisan political activity and to require employees applying for such leave to certify that it wouldn't be used for such purposes.

APWU grieved the Service's actions, asserting that they were contrary several provisions of its CBA, including a Section that provided:

The leave regulations in Subchapter 510 of the Employee and Labor Relations Manual, insofar as such regulations establish wages, hours and working conditions of employees covered by this Agreement, other than PSEs, shall remain in effect for the life of this Agreement.

The CBA also required notice and consultation prior to any changes not otherwise inconsistent with the agreement. 

The grievance was appealed to arbitration, and NALC and the National Postal Mail Handlers Union intervened.

 Sustaining the grievance, Arbitrator Goldberg rejected the Postal Service's argument that its action was compelled by the report and that the dispute was therefore not subject to arbitration. He noted:

The Postal Service argument fails to take into account the limited authority vested in the OSC. As the Unions point out, the OSC does not have the power to determine whether a violation of the Hatch Act has occurred, much less to determine an appropriate remedy for such a violation. OSC is authorized only to investigate allegations of Hatch Act violations, to prosecute alleged violations before the Merit Systems Protection Board, and to issue advisory opinions. It is only the Merit Systems Protection Board which has the authority to determine whether a violation of the Hatch Act has occurred, and if so, to impose an appropriate penalty. An opinion or allegation by OSC of a Hatch Act violation is thus without legal effect, and, contrary to the Postal Service assertion, may be ignored without penalty.
There exists no basis for inferring that the arbitration provision of the National Agreement was intended to exclude any dispute in which the arbitrator’s decisionmay create the risk of legal proceedings against one of the parties.

For much the same reason, the Arbitrator found the Service's actions were inconsistent with its contractual obligations:

The OPS [sic] does not have the authority to enforce the Hatch Act; only the Merit Systems Protection Board possesses that authority. Hence, the OSC opinion that the ELM violated the Hatch Act is not that of a court (or agency) of competent jurisdiction, and the Postal Service may not rely on the OSC ruling as a defense to the otherwise valid Union allegations that the PostalService’s changes in the ELM violated Articles 5, 10.2, and 19 of the Agreement.

While noting that he was making no determination as to whether the OSC's view might ultimately prove correct, he ordered the Postal Service to rescind the changes to the ELM and make whole any employee who was disciplined or whose LWOP request was denied because they indicated they were requesting "union time" to engage in partisan political activity.