Sunday, May 13, 2018

Quick Hits - Arbitrability Issues


Incorporation of AAA Rules gives arbitrator authority to decide question of arbitrability

The Second Circuit has rejected a hospital's efforts to vacate an award of Arbitrator Daniel Brent, concluding that the dispute was properly subject to arbitration

The grievance involved a claim by the New York State Nurses Association that Southside Hospital had, for extended periods of time, required nurses to perform excessive non-nursing duties in violation of the cba. Arbitrator Brent upheld the grievance, finding, contrary to the position of the hospital, that the matter was properly before him. The Hospital had claimed that the matter should first have been addressed by the Committee on Nursing Practice provided for in the cba. Arbitrator Brent found that efforts to rectify the situation through the Committee had been unsuccessful and that the Union was "entitled to an impartial determination of the language of Article3.10" which provided that nurses "should not be required to perform non-nursing functions as a part of their assigned duties ... "

The Hospital sought to vacate the award and the Union sought to confirm it. The District Court adopted the Report and Recommendations of the magistrate and confirmed the award (here). The  Second Circuit has now affirmed, (here) finding that the cba's express incorporation of "the existing rules of the American Arbitration Association" empowered the Arbitrator to decide the issue of arbitrability and that "the arbitrator's decision reflects a plainly reasonable application of the CBA, for reasons lucidly explained in the magistrate judge's thorough January 26, 2017 report and recommendation, which the district court adopted in its entirety."


Successor ordered to arbitrate claim that it failed hire employees allegedly terminated by predecessor


Business Resources and Security Services USA ("BRSS") was a subcontractor performing security services at a site in Washington D.C.  Preeminent Protective Services, Inc. took over the subcontract and, as required by the cba between BRSS and SEIU Local 32BJ, offered employment to the BRSS employees at the site and assumed the cba.  The status of two BRSS employees, however, was the subject of dispute. Preeminent claimed the two employees had been dismissed by BRSS prior to the time it took over the subcontract. SEIU claimed that Preeminent had treated these two as having transferred and had begun paying them. The Union sought to arbitrate what it claimed was Preeminent's termination of the two employees.  Preeminent refused, and the Union brought an action to compel arbitration.

The District Court granted the Union's request to compel arbitration. Service Employees International Union Local 32BJ v. Preeminent Protective Services, Inc. The Court determined:

In this case, Preeminent's and the Union's quarrel is not about whether the parties entered into a valid, enforceable contract, or whether the arbitration clause in the contract applies to the parties. Instead, Preeminent raises a threshold question of whether the officers were Preeminent employees, and posits that they were not because they were dismissed by BRSS, making the Union's claim against Preeminent untenable. ... The Union maintains that the officers were not dismissed by BRSS and that they were therefore Preeminent employees who were wrongly discharged by Preeminent.... Analysis of the principles summarized by the Supreme Court in AT&T Technologies counsel that the question is properly for the arbitrator to decide.

Noting that it was not predetermining the final decision, the Court analogized the case to one involving a dispute about whether an employee was probationary and therefore excluded from arbitration. In this case, the arbitrator could decide whether the employees had ever become Preeminent's employees, and determine which entity had terminated them.

FLRA "reexamines" approach to procedural arbitrability review

In United States Smal Business Administration and American Federation of Government Employees Local 3841 the FLRA has "reexamined" its approach to handling challenges to an arbitrator's ruling on procedural arbitrability issues.  Pointing to its decision in Indep. Union of Pension Emps. for Democracy & Justice, the Authority noted that it had previously found that "essence" challenges to an arbitrator's award provided no basis for finding an award deficient. In its SBA decision the Agency has now concluded that:

we now reexamine our precedent and hold that parties may directly challenge arbitrator's procedural-arbitrability determinations on essence grounds. Consequently, we will no longer follow Agency decisions holding otherwise.

Applying the  new standard to the case before it, the Agency determined that Arbitrator Barton Bloom's decision that the grievance before him was procedurally arbitrable "conflicts with the plain wording of the parties agreement."  Accordingly it set aside Arbitrator Bloom's award that while the Union had not complied with the fourteen-day the limit in the agreement to submit a form to FMCS, its grievance was nevertheless arbitrable because the Agency had waived the right to contest the timeliness of the submission by accepting and processing the form without objection, and failed to notify the Union that it had added the issue of timeliness to the FMCS form. Moreover, the Aritrator concluded that in any case, the grievance was procedurally arbitrable because the parties had a practice that allowed the Union not to strictly comply with time limits. Finding the Arbitrator's decision contrary to the language of the cba, the Authority noted:

arbitrators may not look beyond a collective-bargaining agreement- to extraneous considerations such as past practice - to modify an agreement's clear and unambiguous terms. 

Sunday, April 29, 2018

Reaction to police discipline award highlights mixed expectations about the issue

A recent award, and the reaction to it, highlight the sometimes conflicting expectations involved in arbitration proceedings. While conflicting expectations may not be uncommon, they take on greater significance in matters of police discipline.

Arbitrator William Serda issued an award (here) overturning the termination of Ft. Pierce police Sergeant Brian MacNaught. Sergeant MacNaught had been dismissed following his involvement in the fatal shooting of Demarcus Semer.

Semer was involved in a police stop. During the course of the stop Sergeant McNaught approached the vehicle, which was till running, to open the passenger side door. At some point Semer put the car in gear. While the facts are not clear from the arbitration award, Sergeant McNaught was able to get in to the vehicle. The other officer involved in the stop began shooting at the vehicle. Sergeant McNaught believed the shots were coming from the driver. In an ensuing foot chase, Sergeant McNaught fatally shot Semer. According to McNaught he believed Semer had a weapon and was preparing to use it. In fact, Semer did not have a weapon but was found with a cell phone. (This description comes from a report of the Department's Internal Investigation summarized in an article on TCPalm.com Fort Pierce Police Department internal investigation reveals more details)

The shooting generated significant publicity, and a grand jury was empaneled to investigate. The grand jury returned a no bill, finding the officers' actions objectively reasonable. (here)

Ultimately the Department's internal investigation recommended that Sergeant MacNaught's employment be terminated, a recommendation the City adopted.

The termination did not involve the shooting directly. However, the City did claim that there was a "procedural issue" regarding the actions of the grievant during the traffic stop, and that, separately, the City had discovered during its investigation that he had retained a Department issued body camera despite orders that all body cams be returned to storage until a policy for their use could be developed.

The termination was grieved and submitted to Arbitrator Serda for decision. According to the award:

The Parties agreed in general, and the Arbitrator articulates the issue before us as:
Did the City, Ft. Pierce, FL., have just cause to terminate/discharge Grievant MacNaught on May 8, 2016, for the "body camera incident of April 23/24 2016?"
If not, what shall be the remedy

Notwithstanding this limited issue, the City did argue that:

 The totality of the events, the shooting and the body cameras, cumulatively create clear just cause for termination and meet the requirements of the commonly used "seven management tests for just cause."

It acknowledged that there was no policy or methodology violated by grievant, but asserted that "an experienced officer, applying common sense, should never have created and placed himself in, such a situation." It argued that the Sergeant's entering the vehicle while it was still running created a vulnerable situation should the driver move the car.

Arbitrator Serda rejected the City's reliance on "common sense" concerning the actions surrounding the stop, and concluded that grievant's failure to return the body cam to storage was not an intentional effort to disobey an order but was based on the mistaken belief that his use of the camera for demonstration in his meetings with the public on behalf of the department was exempt from the order.

Arbitrator Serda overturned the dismissal, ordering grievant's reinstatement subject to a one day suspension for his lapse in judgment concerning the return of the body cam.

The reaction of Ft. Pierce City Commissioner Sessions to the award indicates what was perhaps an erroneous expectation by him, and possibly by members of the public, concerning the issue before the arbitrator.  A  report in TCPalm.com (Fort Pierce commissioner wants police to buy out officer reinstated after death of Demarcus Semer) quotes Sessions as saying:

I was really devastated because based on the information that I received, that I was privy to, that it was a slam dunk to have him terminated," Sessions said. "Looking at the arbitrator's ruling, I think what happened was the ball was dropped with regard to what the real issues were. The real issue was this young man being killed where there was not a gun.

Commissioner Sessions called for the City to attempt to buy out Sergeant MacNaught in lieu of reinstatement, expressing concern about his safety should he return to patrol. 

The family of Demarcus Semer has also questioned the fairness of the result, and expressed their lack faith in the system, and the family's attorney indicated that they were pursuing a civil action relating to the shooting. Fort Pierce police officer fired after fatal shooting of unarmed man ordered to be reinstated

Sunday, April 22, 2018

Interest arbitration and the need for candor

Arbitrator Richard Miller reopened and reconsidered an interest arbitration between Hennepin County, MN and Law Enforcement Labor Services, Inc., Local No. 393, concluding that the County had "purposely withheld" information that had been requested by the Union.

 In the initial proceeding, Arbitrator Miller rejected the Union's requested wage increase for a unit of Licensed Supervisors, finding:

The Union is not a victim of disparate treatment. All County employees were treated the same. The County’s philosophy on collective bargaining was to offer uniform pay increases and benefit improvements across all bargaining units unless compelled by good evidence to do otherwise. ...   More importantly, the Employer never deviated from the internal wage pattern unless specific evidence - meeting defined criteria - justified doing so.
Only in those limited cases where attraction or retention problems warranted greater pay did the County voluntarily adjust wages outside the pattern.


Arbitrator Miller's original award, dated August 1, 2017, can be found here.

The Arbitrator's conclusion was based in part on the assertions of the County that it had a "strict" practice of rejecting above pattern increases absent a voluntary turnover rate at least twice the County average. The County argued that it "never broke its internal pattern unless specific evidence - meeting defined criteria - justified doing so. No supervisory job class in the county met those criteria"

In preparation for the interest arbitration, the Union had requested information concerning wage increases for other employees. The County responded to the request except that it failed to produce information about above-pattern increases for several non-organized job classes. 

The Union subsequently heard about a 7.5% increase, provided to the "non-organized classes of Chief Deputy and Sheriff's Majors," a group with no apparent attraction or retention problems,  about a month after the Arbitrator had rendered his initial decision.  In light of the new information, the County agreed to the Unions request to have the Arbitrator once again review the Union's request for market adjustments for the Licensed Supervisors. 

In his award, Arbitrator Miller noted:

Labor relations is built on trust and honesty between the Parties and not on omission or failure to provide relevant information, which occurred in this case. Unfortunately, this trust was breached by the County. This is very disappointing. While it is true that Mr. Olness and others in his department may not have participated in the decision to grant the 7.5% market adjustments to the Chief Deputy and Majors (as it appears this was done solely by the Sheriff), they knew at the time of the interest arbitration hearing with the Licensed Supervisors that the Chief Deputy and Majors were going to receive this market increase for 2016 with no retention problem. ... Yet, the County made a purposeful decision to delay implementing the market adjustment, and not just until after the July 7, 2017 interest arbitration hearing, but until after the arbitration award was issued.

  In light of the new evidence that there in fact was not a "uniform policy" regarding market adjustments Arbitrator Miller concluded that the Licensed Supervisors should be treated the same as the Majors and Chief Deputy in terms of comparing their compensation to the external market and awarded a market adjustment he had previously rejected.

Arbitrator Miller's award on reopening can be found here.

 Update  The issue of claimed misrepresentations during collective bargaining in the private sector is discussed in an NLRB Advice Memo Haier U.S Appliance Solutions, Inc.

Sunday, April 15, 2018

Two public policy reversals, last chance agreements, and call out pay

Minn. court overturns award reinstating police officer accused of failing to report use of force

The Minnesota Court of Appeals has refused to uphold an arbitrator's award reinstating a police officer who was dismissed for alleged use of excessive force and for failure to properly report the use of force. City of Richfield, v. Law Enforcement Labor Services, Inc..  The officer had responded to a report of a number of people driving erratically. During the course of his investigation grievant pushed one of the individuals he was speaking with and hit him in the back of his head. He did not file an incident report concerning his use of force. After a video of the incident appeared on Twitter, the department began an investigation and ultimately dismissed the officer both for his use of force and his failure to report that use of force. The matter was submitted to Arbitrator Charlotte Neigh who issued an award finding that force grievant used was not excessive, but that he had failed to properly report his use of force. She found that the failure was not intended to conceal the incident,which would have been misconduct, but was a lapse of judgement which was a performance issue. She ordered grievant's reinstatement subject to a three day suspension for the unacceptable performance. The City sought to vacate the award. It did not challenge the Arbitrator's finding on the excessive force issue, but argued that "an arbitration award reinstating an officer who failed to report his use of force—after he had been trained, retrained, counseled, and disciplined on this topic—violates public policy." The district court denied the City's request, but the Court of Appeals reversed. It found:

Reinstating [grievant]—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD's legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force. Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.

  The Court noted that this was only the second time it has vacated an arbitration award reinstating a police officer as contrary to public policy but determined that:

To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.

NY Appellate Division rejects "irrational," "unsustainable" award reinstating employee dismissed for sexual harassment

Reversing the lower court decision confirming the award, New York's Appellate Division has refuse to enforce an arbitrator's award reinstating an individual who had been dismissed for alleged sexual harassment, finding the award contrary to public policy. Matter of New York City Transit Auth. v. Phillips. Concluding that the award effectively prevented the employer from complying with its legal obligation to protect against sexual harassment in the workplace the Court found:

... the arbitrator's decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that [grievant] did not violate the workplace sexual harassment policy. Among the express findings of the EEO — with which the arbitrator was "compelled to agree" — were that [grievant] offered to act as Melendez's "sugar daddy"; that [grievant] stated, in the presence of others, that he would "stay in bed all day" if he had a woman like Melendez and would "oil her down"; and that [grievant] placed his wallet on the ledge and stated in the presence of others, "I would give all of this" for Melendez.
Given such findings, it is unfathomable that the arbitrator could find that [grievant's] conduct did not violate the workplace policy against sexual harassment, which expressly defines sexual harassment to include behavior which "has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive working environment." This disjunction between the arbitrator's findings and his summary conclusion that [Grievant's] behavior nonetheless did[sic] "did not rise to the level" of sexual harassment is fundamentally irrational ...

The Court found that the arbitrator's modification of the termination to a "meager 10-day suspension" was contrary to the well recognized policy of the State and "cannot stand." It remanded the case "to a different arbitrator to enter a finding that respondent Aiken subjected Melendez to inappropriate and unwelcome comments of a sexual nature in violation of petitioners' sexual and other discriminatory harassment policy, and to pass upon the appropriateness of the penalty of termination."

The Court had earlier found erroneous the arbitrator's finding that the Union's action's of placing grievant on Union leave effectively precluded discipline Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Last Chance Agreement makes dispute not subject to arbitration

An earlier post (Last Chance Agreements- Arbitrability of triggering event) discussed a decision of the Western District of Pennsylvania concluding that, in the absence of specific language rebutting the presumption of arbitrability, a Last Chance Agreement didn't preclude the arbitration of the factual question of whether the grievant committed the act alleged to be in violation of the agreement. An Illinois Appellate Court has now reached a different conclusion on arguably similar facts. The Court's unpublished decision can be found here.  The Court concluded:

...the LCA explicitly stated that, were [grievant] to violate department rules again, he could not invoke the CBA’s procedure, including its final grievance-resolution step of arbitration, to fight the matter. Rather, any violation–any “non­ compliance”–would result in termination of his employment, leaving no room for debate. The LCA repeated this again two more times when it clarified that the “non-compliance” may be related to any directive, standard or protocol issued by [grievant's] supervisor, deputy chief or any administrator, and when it ordered him, “in the presence of” the Union and Employer, to acknowledge his understanding of this. And, most evident here is the paragraph of the LCA appearing immediately above its signature lines, which stated:
"As a condition of your acceptance of these conditions relative to this 'last chance agreement' and your acknowledgement [sic] of your agreement to waive all rights to grieve this corrective action, please sign this document along with your union representative."
Undeniably, Jordan and the Union, along with Employer here, signed this LCA and waived all rights to arbitration in any regard with respect to the issue of his employment and, likewise, its termination. The presumption of arbitration has been overcome.


Minimum hours guarantee applies "per call-out" 

The Pennsylvania Commonwealth Court has refused to vacate an arbitrator’s award finding that grievants were entitled to two minimum call out guarantees when they were called out twice on a holiday. City of Pittsburgh v. Teamsters Local Union No. 249 The cba provided that employees called out on a holiday were to be paid three times their hourly rate for all hours worked, and were guaranteed a minimum of eight hours at the triple time rate. Grievants, snow plow operators, were called out at 10 pm and worked through 10 am the following day (Presidents' Day). They received 12 hours pay at the triple time rate. They were again called out at 6 p.m. and worked for four hours. They were paid an additional four hours at the triple time rate. They grieved, claiming that they should have received an eight hour minimum for the second call out. The issue was presented to Arbitrator Christopher Miles who upheld the grievance. Rejecting the position of the City that the employees were entitled to one eight hour minimum per holiday, Arbitrator Miles concluded that nothing in the language of the contract specifying that the minimum guarantee was limited to one call out per holiday. Finding the language applies "per call-out" he sustained the grievance. The Common Pleas Court confirmed the award, and the Commonwealth Court has now affirmed that decision. The Commonwealth Court held:

Viewing the award as a whole, the Arbitrator based his decision on the language in Section 11.B. He did not add new words to the CBA; he interpreted it. So long as his interpretation is rationally derived from the CBA, it must be upheld. Here, we must conclude it is. The Arbitrator explained that, in his view, Section 11.B applied when an employee is "called out to work on a holiday." (Arbitrator Decision at 4.) This mirrors the language found in the second sentence of Section 11.B. While the City's interpretation is equally persuasive, as stated above, our standard of review is limited to determining whether the Arbitrator's interpretation is rationally derived from the CBA. "It is not necessary that this Court agree with an arbitrator's interpretation of a CBA for it to be sustained." ...

Arbitrator Miles' Award can be found here.

Sunday, April 8, 2018

Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement

Grievant was employed as a corrections officer with the Trumball County Ohio Sheriff's Office. On August 24, 2017 an incident in the jail led to an investigation by the Sheriff's Office. Grievant (and several other officer) were involved in the movement of an inmate who was returning to the jail from treatment following a suicide attempt. During the course of the transfer, the inmate became belligerent and was dragged and carried to his cell. An investigation of this incident ensued during which grievant was interviewed and his incident report was reviewed. Other officers were also interviewed and one of the other officers interviewed stated that grievant had struck the prisoner with his knee in the ribs/kidney and then struck him three times in the same area with a closed fist. These events were not included in grievant's Incident Report. After further investigation grievant was again interviewed. He then acknowledged for the first that he had administered two strikes to the prisoner in an effort to control him but had not included this in his incident report because he had "simply overlooked it." After an additional interview with another officer the investigating Lieutenant prepared a report charging grievant with violation of policy. Grievant was then called to a meeting with  the Chief Deputy where he was given a Notice of Discipline indicating he was being discharged.

The Union (Ohio Patrolmen's Benevolent Association) grieved the dismissal and the case was presented to Arbitrator Nels Nelson. The Union claimed that Grievant had been denied the due process called for by both the cba and the Constitution, and that the termination was without just cause.

Arbitrator Nelson agreed with the Union's due process position. He rejected the position of the Sheriff's Office that the Internal Affairs  investigation satisfied the right to a pre-termination hearing and its claim that grievant had waived a pre-termination hearing. However he did conclude that there was just cause for discipline . He found that grievant had used excessive force against the inmate and rejected grievant's claim that his failure to mention his use of force in his incident report and his first interview was caused by a "lapse of memory."

Turning to the question of remedy, Arbitrator Nelson observed the this question was more difficult than in most cases. He noted:

In the instant case, the seriousness of the grievant's offenses makes it inappropriate to return him to work, which eliminates two of the usual remedies for due process shortcomings, i.e., reinstating the grievant with no back pay  or reduced back pay.
Page 217 of The Common Law of the Workplace  recognizes that there is a third option where there is just cause for discharge but the employer failed to provide procedural due process. In this situation, some Arbitrators award back pay without reinstatement. This alternative prevents the reinstatement of an employee who has committed a serious offense and at the same time, recognizes the employer's denial of due process. (footnote omitted)

Arbitrator Nelson's selected the third option. He declined to reinstate grievant. However, he awarded back pay from the date of termination until the final day of the arbitration hearing. By that day, the Arbitrator determined, "grievant had received all of the rights a pre-termination hearing would have provided."

Arbitrator Nelson's award can be found here.


Monday, March 26, 2018

Quick Hits - Exhaustion of remedies, a full day's work, improper touching and revoking a resignation


DFR plaintiffs failed to pursue internal union remedies but case to be held in abeyance pending internal appeal

In what describes as "a case about process," the Sixth Circuit has reinstated a DFR/301suit against the UAW and Chrysler dismissed by the District Court (here) for failure to exhaust internal administrative remedies. Slight v. Local 12, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al. Plaintiffs filed suit claiming that the Union had wrongfully withdrawn their grievance that Chrysler had not properly paid them. The District Court granted summary judgment to Chrysler and the UAW, finding that plaintiffs had failed to utilize the appeal procedure set for in the UAW constitution The Circuit agreed that plaintiffs had failed to exhaust their internal union remedies, but remanded with instructions to hold the case in abeyance while an internal appeal was pursued. The Court rejected plaintiffs claim that exhaustion would be futile, noting that an agreement between UAW and Chrysler authorized reinstatement of a withdrawn grievance if the withdrawal was overturned pursuant to an internal union appeal. It noted also that the International President had the authority to waive the time limits for filing an appeal and that "[t]here's good reason for the president to waive the time limits here since the employees failed to file an appeal because the union official told them (erroneously) that 'its too late to file an appeal,' and to' get a lawyer instead." Concluding that the Union's internal appeal process may provide plaintiffs with the remedies they seek, the Court remanded the case with instructions to hold it in abeyance while an appeal is pursued.


Arbitrator rejects claimed conflict between pension regulations and cba

Sanitation employees of the Town of Cheektowaga, NY worked under a cba that provided for an incentive system that allowed them to end their shift after six hours "with the satisfactory completion of their assigned routes or districts." According to the Union, a practice had developed pursuant to which employees staring at 6 a.m. would leave work at 11. The union maintained that these employees were eligible for two 15 minute breaks and a half hour for lunch which they didn't take, thereby meeting their six hour requirement. In February 2017, the Town advised the employees of a change in pension reporting it attributed to a directive from the State Controller's office. The Town informed employees that the state required work days of a minimum of six hours to be eligible for full pension credit and that employees who left prior to 12 noon would be given only prorated credit. The Union grieved this action, claiming a unilateral modification of the incentive system. Arbitrator Howard G. Foster sustained the grievance. Initially the Arbitrator rejected the Employer's position that the grievance was not arbitrable. He noted that the Union was not claiming that the arbitrator should ignore the State's requirement that employees work six hours to receive pension credit, but rather "that the reporting method that the Town used consistently before February 2017 was not in conflict with the regulations, since it was a standard work day of at least six hours." On the merits, he found that the Town had not established that the method the Union claimed was a past practice was in fact contrary to State requirements. Upholding the grievance, he noted:

I conclude from this record that there is nothing in the communications from the State resembling a "directive" from the State Comptroller, as stated in the February 1, 2017, letter. Nothing in those communications asserts to the Town that the work day, including break times, that has become the practice in the Sanitation Department does not qualify as a six-hour day within the meaning of the Comptroller's regulations. Should there be an authoritative determination from the Comptroller that the work day as established by the parties' practice does not in fact constitute a six-hour standard day as contemplated by the regulations, then the Town would be free to require that employees remain at work for the mandated six hours in order to receive full service credit. But such a determination, on the record before me, has not been made. Under these circumstances, the operation must be controlled by the parties' bargain.

The Town sought to have the award vacated, but the court rejected that effort. Arbitrator Foster's award can be found here, the Court's decision here.


Court upholds arbitrator's award revoking teacher's tenure for improper touching of students

In Dunkley v. Board of Education, Rockaway Township the NJ Appellate Division refused to set aside an arbitrator's award revoking a teacher's tenure. The teacher was alleged to have engaged in the inappropriate touching of two teenage special needs students. Arbitrator Andree McKissick upheld the teacher's removal (here) . He found the teacher's acts in this case, and conduct for which he was previously warned, warranted revocation of tenure. On the teacher's challenge to the decision, the Chancery Court, and now the Appellate Division, refused to vacate the award. Both courts rejected the teacher's argument that the arbitrator failed to consider the results of an investigation by the State's Department of Children and Families that found no sexual abuse. The Appellate Division affirmed the finding of the lower court concluding "[t]hat plaintiff was not charged with sexual abuse does not mean his conduct of inappropriate touching was [an] [in]sufficient basis to terminate him."


City did not constructively discharge employee by denying request to revoke resignation


A police officer in Hibbing MN, upset over an argument with his girlfriend, notified his Captain of his intent to resign. The Captain advised the officer to seek a psychiatric consult, which he did and which found situational depression but no need for a psychiatric hold. Later that evening the officer called the chief and agains stated his intent to resign. He was advised that he should not resign over the phone but should come in the following morning. He did so and after some discussion filled out the necessary paperwork and submitted his resignation. The next morning he expressed a desire to rescind his resignation. While the Chef did not object, the City Mangaer who had the final decision, elected not to accept the attempted revocation. The Union grieved that decision and the dispute was submitted to Arbitrator Stephen Befort. Arbitrator Befort denied the grievance. He rejected the Union's claim that the resignation could not stand in light of grievant's mental state. Reviewing the applicable principles, Arbitrator Befort noted:

As a matter of general principle, a voluntary resignation that is accepted severs the employment relationship in a matter that is not considered a discharge. Elkouri & Elkouri, How Arbitration Works 15-9. Arbitration decisions also have ruled that an employer has the right to accept or reject an attempted retraction of a resignation for any reason, Transcon Lines , 40 LA 469 (1963); Borden Co. , 38 LA 425 (1962) and that an employer's exercise of discretion to decline a retraction does not convert voluntary resignation into a constructive discharge, Fairmont General Hospital, Lab. Arb. Awards (CCH) 02-2 at 3199 (2001).

The Arbitrator concluded that despite his emotional turmoil, grievant acted in a calm and deliberate manner in resigning and did so for reasons that evidenced a rational thought process. While he ultimately regretted his decision, grievant's mental state "did not invalidate his resignation or the ability of the Employer to accept that resignation."

Arbitrator Befort's award can be found here.

Monday, March 19, 2018

Grievance timelines, threats in the workplace and public policy

All of these topics are discussed in the recent decision of the Eleventh Circuit in Peco Foods Inc. v. Retail Wholesale and Department Store Union Mid-South Council.

The case originated with the termination of an individual alleged to have made a threat of violence during a Company safety meeting. During the meeting, the supervisor advised the employees that individuals on the prior shift had been throwing ice, and reminded the employees that such conduct was contrary to Company policy. Grievant responded "I don't throw ice, I throw lead." Several employees laughed at this response. The supervisor reported this comment to his supervisor, and sometime later that morning grievant was called to a conference room where he as questioned about the comment. Grievant admitted he had made the comment but stated he hadn't meant anything by it. In response to a stewards question, grievant's supervisor acknowledged that he had not felt threatened by the comment but reported it because of a recent workplace shooting at another company. At the conclusion of the meeting grievant was sent home for the day. The next morning, grievant's employment was terminated. The termination was grieved and ultimately submitted to Arbitrator William H. Holly for resolution.

At the arbitration, the Company argued that the Arbitrator did not have jurisdiction to hear the dispute because the Union had waited too long to appeal the case to arbitration. The cba required an appeal to be made "within fifteen (15) calendar days of . . . [Peco's] answer at Step 3 of the grievance procedure." The Union had filed its appeal thirteen days beyond that deadline. On the merits, the Company maintained that grievant's undisputed comment was "tantamount to a workplace violence threat"and that based on recent workplace violence incidents any discipline short of termination would not be justified.

The Union argued that the parties did not have a history of strict adherence to timelines and that the Company had not raised this issue until the arbitration. It also argued that the termination of a long service employees for this comment was unjustified since the comment was not threatening, was not directed at any individual, was made in a lighthearted tone, and was not perceived as threatening by anyone present.

Arbitrator Holley, after reviewing the facts and a number of prior awards and treatises, sustained the grievance. He first concluded that the Company had waived any reliance on the Union's delayed appeal to arbitration. He observed:

In thus matter, the Company fully participated in meetings after the Step 3, in selecting the arbitrator, and in establishing a place, time, and date for the hearing without mention of a procedural defect in the processing of the Grievance. Therefore, the conclusion is that the Company accepted the grievance and waive[d] its challenge to the Grievance procedural arbitrability.

On the merits, the Arbitrator found

In this matter, [Grievant] was not specific; he did not direct his words at anyone; no one considered his words to "be threatening", even his supervisor; no one called the police; he was not sent home immediately; he apologized for making the statements a short time after he made the statement. [Grievant] could not explain what he meant because it was a "stupid" comment, but short of a threatening comment.

Peco sought to vacate the award, both as beyond the jurisdiction of the arbitrator because of the Union's untimely appeal and as contrary to "public policy against violence and threatening behavior in the workplace." The District Court (here) and now the Eleventh Circuit (here) rejected these efforts. Both found that the decision concerning the Employer's waiver of the time limits to be within the authority of the arbitrator. The Eleventh Circuit concluded:

We therefore agree with the district court that the arbitrator was acting within his broad discretion to interpret and apply the terms of the Agreement in concluding that Peco waived its challenge through its conduct. See, e.g., Mosher Steel, 796 F.2d at 1366 (courts must "uphold an arbitrable award that is premised on the arbitrator's construction of the contract and his understanding of the intent of the parties") (quoting Drummond, 748 F.2d at 1497).

  Both the District Court and the Eleventh Circuit also rejected the Employer's public policy claim, noting that the Arbitrator had found that no "threat" had taken place.  On  this point, the Circuit noted:

Peco's public policy argument rests entirely upon its assertion that [Grievant's] comment about "throwing lead" was a threat of workplace violence. But the arbitrator found that [Grievant's] statement was not a threat of violence, and this Court is not permitted to second-guess the arbitrator's findings of fact. ...  That is because "[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them." ... Nor are we permitted to second guess the arbitrator's findings of fact merely because we are "inquiring into a possible violation of public policy."

While upholding the arbitrator's award, the Court refused the Union's request for attorney fees, finding the Company's appeal meritless but not frivolous.

Arbitrator Holley's award can be found here.