Sunday, September 25, 2016

Quick Hits - Retiree health, Military leave, Teacher tenure, In the news

Honeywell not obligated to arbitrate termination of retiree health benefits

After Honeywell announced that it would terminate retired employees medical and prescription drug coverage, a group of retirees filed a multi-count complaint challenging that action. One of the counts sought to compel Honeywell to arbitrate their claim that the Company's action breached the applicable cba. The District Court for the Southern District of Ohio rejected this claim. It noted that the cba limited arbitration to disputes between the Company and the Union, not individual retirees. It also rejected plaintiffs claim that they were entitled to arbitrate the issue as third part beneficiaries to the contract, finding that to the extent that Plaintiffs are seeking to enforce promised made in  the CBA, they are bound by all of its terms, including the scope of the arbitration provisions. Fletcher et al v. Honeywell International, Inc.

Military leave, past practice and arbitrability

The Ohio Court of Appeals, reversing a lower court decision, found that an arbitrator did not exceed his authority when he concluded that the State breached its cba by unilaterally ceasing payment for travel and rest time related to military leave. The lower court found that the cba did not contain a definition of military leave and concluded that the arbitrator had exceeded his authority by independendly construing the term. The Court of Appeals, however, concluded that the arbitrator was authorized to interpreted that term as used in the cba in light of the past practice of the parties. State of Ohio v. Ohio Civil Service Employees Association, Local 11 AFSCME

Unsworn student statements, without testimony, insufficient to support teacher tenure charges

Arbitrator Edmund Gerber rejected teacher tenure charges accusing a teacher of improperly providing answers during a student assessment test. The Schools District's evidence consisted of the unsworn statements of 27 students, none of whom were called to testify. Arbitrator Gerber dismissed the charges at the conclusion of the School District's case, finding that this hearsay evidence was insufficient to support the charges. In the Matter of the tenure hearing of Michelle Gates, State-Operated School District of the City of Paterson

Labor Arbitration in the news 

Arbitrator rules Buffalo School Board can’t get rid of cosmetic surgery rider without negotiations

North Jersey teacher should be fired for bullying students, arbitrator rules

NALC: National-level arbitration case decided on ‘Work and Time Standards Video Recording’

Judge orders ex-cop's reinstatement

Arbitrator Rules Against Itasca County Sheriff's Department

Sunday, September 18, 2016

Eleventh Circuit: Presumption of interpretation versus modification of cba supports arbitrator's award-effort to vacate denied

Shaw Environmental was a government contractor on a military facility. The cba between Shaw and the Wiregrass Metal Trades Council called for the termination of an employee for "Possessing ... Government property without authorization."

A bargaining unit employee was dismissed after he gave a plasma cutter to an auto parts store in payment of a bill. The employee claimed that the equipment had been left with him for temporary storage by an individual who failed to retrieve it after several requests to do so. While there was some dispute about how the employee had acquired the plasma cutter his employment was terminated when it was established that the equipment was government property. The termination was grieved, and the dispute was submitted to Arbitrator Carol M. Hoffman for resolution.

Grievant claimed that he was not aware that the equipment was government property. Shaw maintained that proof of actual knowledge was irrelevant, that the offense occurred upon "possession" without authorization without regard to actual knowledge of ownership.

Arbitrator Hoffman sustained the grievance (here). She accepted grievant's testimony that he was not aware that the property in issue was government owned. She concluded:

...grievant's demeanor at the hearing evidenced an unawareness of the fact that the plasma cutter was stolen or that it was property belonging to the government at the time Justin Griffin brought it to grievant's home. Grievant cannot be said to have violated a policy prohibiting possession of government property when he did not know the property belonged to the government or that it had been stolen.

Separately, Arbitrator Hoffman faulted the Company for failing to conduct its own investigation, relying instead on the investigation performed by the military police.

Shaw sought to vacate the award. It claimed that the arbitrator had exceeded her authority by improperly adding a "knowledge" element to the offense. The District Court (here) agreed with Shaw and vacated the award. It found:

While the parties expressly bargained for an arbitrator to be given the authority to interpret and apply the CBA and ultimately issue final and binding determinations, they did so with the understanding that the arbitrator would not “change, alter, amend, modify” or add to the other provisions bargained for in the CBA. And as the Magistrate Judge properly recognized, “[i]t is an unobjectionable principle that an employer can bargain to have included in a collective bargaining agreement a provision to the effect that certain identified types of employee conduct always provide just cause for discharge.” ... Here, the CBA contained just such a provision, whereby both parties agreed that the “possessing, taking, removing, using, destroying, or tampering with Company or Government property without proper authority” would constitute just cause for termination. ... Wiregrass could have negotiated “knowingly” possessing into the contract, but did not. The arbitrator exceeded her authority by adding it to the CBA.

The Metal Trades Council appealed, and the Eleventh Circuit has now reversed (here), effectively confirming the award. The Court noted two principles defining the scope of an arbitrator's authority. The first is that the court must defer "entirely" to the arbitrator's interpretation of the contract, no matter how wrong it may believe that interpretation to be. The second is that an arbitrator may not ignore the plain language of the contract. The issue, therefore, is whether the arbitrator interpreted the contract or, instead, modified it by ignoring relevant language.

In this case, it was undisputed that the policy in issue was silent on the question of whether an employee must know that the property in question was government owned to be subject to termination. The parties disagreed, however, on the effect of that silence. The Court summarized the conflicting positions:

Shaw contends that the policy's silence renders it unambiguous and impervious to interpretation. According to Shaw, the policy's failure to say anything about a knowledge requirement definitively shows that the parties did not intend any such requirement, but instead intended for the possession of government property without proper authority to be a strict liability offense. The Union, on the other hand, contends that the policy's silence renders it open to interpretation, allowing the arbitrator to read into it (or infer from it) a knowledge requirement.

The Court noted that the language would have been clearer if it had provided that the possession of government property without authorization was a terminable offense whether or not the employee had knowledge that the property belonged to the government, or, in contrast, if it provided that an employee would be in violation of the policy only  if he "knowingly possessed government property without authorization." Since it did neither, however, the language used was subject to interpretation

The next question, according to the Court, was whether the arbitrator had in fact interpreted the language. To resolve that question an analysis of the arbitrator's reasoning is called for. Here, however, the arbitrator failed to expressly articulate a rationale from which that analysis could be performed. According to the Court:...

... there is no indication that her imposition of the knowledge requirement resulted from interpretation of the agreement instead of her own view of right and wrong. She did not characterize her task as one of interpretation. She did not describe the plain meaning of the terms in the policy. She did not invoke canons of construction. She did not look to extrinsic aids to find the parties' intent. She did not explicitly do any of the things that we ordinarily associate with an interpretive effort. But that does not mean that she failed to do some of them implicitly — in her head instead of on the page.

Given that the state of the record could support either alternative, i.e interpretation or modification, the Court concluded that, "unlike Buridan's ass" it could make a decision between the two equally plausible choices. Relying on the Supreme Court's decision in United Steelworkers of America v. Enterprise Wheel & Car Corp., the Court held that unless it was "apparent" that the arbitrator had exceeded her authority the award should be confirmed.  This rule, observed the Court, reflected the strong, although not irrebuttable, presumption that the arbitrator interpreted the agreement rather than modifying it. The Court noted:

The Enterprise Wheel presumption, which we apply today, helps keep the promise of arbitration. By presuming, in the absence of evidence to the contrary, that an arbitrator's award rested on an interpretation and not a modification of an agreement, we discourage parties from trying to snatch court victories from the jaws of arbitration defeats.

Sunday, September 11, 2016

Employee suspended and forgotten- Arbitrator orders reinstatement

Grievant was employed as an Investigator by the State of New York-Office of Medicaid Inspector General. In October of 2012 he was suspected of emailing to his personal email address, and to the Comptroller of Albany County, files containing sensitive information, including personally identifiable information and health data. The Office's First Deputy performed a search of emails sent from grievant's computer and confirmed that emails were sent to an unencrypted account and to a person not authorized to receive the data. Based on this information grievant was suspended with pay and escorted from the building. According to the arbitrator there was some question concerning whether grievant was informed of the charges against him and it was "unclear" if any further investigation was conducted between October 19, 2012 and April of 2015.

On April 24, 2015 (after an inquiry by grievant's attorney to the Attorney General concerning his status) grievant was interviewed about the transmission of information protected by HIPAA sent to himself and the Comptroller in 2012. Two months later, the Office issued a Notice of Discipline asserting that the transmission of these emails constituted misconduct and converted his suspension to unpaid status. His union (Public Employees Federation) demanded arbitration, and the case was submitted to Arbitrator Ira Lobel for resolution.

Arbitrator Lobel agreed with the State that the one year limitation on the imposition of discipline did not apply because the matter fell within the contract’s exception for conduct which might constitute a crime.

Nevertheless he found that the State had simply waited too long to impose discipline:

In this case, OMIG knew about the alleged misconduct in October, 2012, when it placed [grievant] on his paid leave. It did nothing to further investigate; its referral to the appropriate State or Federal agencies was minimal at best. Based on the testimony it appears OMIG simply placed [grievant] on leave and forgot about him. When it filed the NOD, it was over two and a half years after the initial suspension. This is simply too long a period to keep any employee in an uncertain situation, with no knowledge of the charges against him. Even though [grievant] was on a paid suspension, he had legitimate concerns regarding his status that an employer should be obligated to address.

While he considered grievant’s conduct “problematic” and a technical violation of HIPAA rules. Arbitrator Lobel dismissed the charges against grievant as untimely.

Arbitrator Lobel's award can be found here.

Sunday, September 4, 2016

Police officers exchange of racially derogatory text messages found sufficient cause for dismissal

Four officers of the Ft Lauderdale Police Department were investigated for exchanging racially charged text messages and at least one video. The messages were brought to the attention of the Department by the former fiancée of one of the officers. The former fiancée had access to the messages during the relationship and preserved copies them. Several of the messages contained disparaging racial references, including repeated use of the "N" word. The messages also contained disparaging references to other officers and the efficiency of the Department. Following the investigation one of the officers (the creator of the video) resigned and the remaining three were dismissed. One did not challenge the dismissal. Two pursued their discipline separately before Arbitrators Carey M. Fisher and James Reynolds. Both arbitrators denied the grievances and upheld the terminations.

Both arbitrators rejected the officers claims that the messages had been improperly obtained or were protected by the First Amendment. On the merits, both found the evidence supported the Department's charge that each officer had engaged in "conduct unbecoming" and conduct "prejudicial to the good order of the Department."

Concerning the use of the "N" word, Arbitrator Fischer observed:

[Grievant] argues that it is merely that – a word, the meaning and import of which is dependent on the context and thought process of both the speaker and the listener, or in this case, the author and recipient. He denied any intent to denigrate African Americans. He denied any intent to express hateful, racist expressions. Yet, the word itself, and the context in which it was used, along with other exchanges amongst the officers, leads to the inescapable conclusion that its use was distasteful, unprofessional and derogatory. Yes, just a word, but one that conjures up images for which a proper context does not exist when used today by police officers (white or black) about residents of Fort Lauderdale.

Arbitrator Fisher noted that the use of the word in this case this was not "a slip of the tongue in a fit of pique" or one time indiscretion, but rather the denigration of a group "as part of one's personal entertainment.”

Concluding that the conduct involved damaged the Department’s relationship with the community  Arbitrator Fischer found the conduct involved directly impacted the Department’s  ability to perform its duties. Arbitrator Fischer observed:

The tasks facing police departments are considerable as populations have grown more culturally, racially, ethnically and religiously diverse. It is well known throughout this country that tension and conflict exists between police and some populations of the communities they serve. Unavoidably, the role police have in enforcing the law and maintaining order places officers in key positions to deal with all kinds of conflicts. Additionally, the actions of officers and the perceptions of the public result in heightened media, political and public attention. Bad news travels fast. Perceptions become reality. Enough gossip turns into fact.

Accordingly he found that the City had established cause for the officer’s dismissal.

In his award, Arbitrator Reynolds reiterated that police officers are held to a higher standard of conduct than other professionals:

... the primary duty of police officers is that of law enforcement. As such they are often the first to be involved in actions that could result in depriving citizens of their freedom. That is a formidable responsibility. In order to effectively discharge their responsibilities police officers must have the respect of the community they serve. That requires that they adhere to high standards of conduct in both their private and professional lives.

Like Arbitrator Fischer, he rejected the officer’s assertion that his intent was not to be racist or disparaging, finding that the comments were clearly racist “and his intentions do not provide any other meaning."

Even accepting as believable the officer’s testimony that he was not a racist, Arbitrator Reynolds found:

His comments were racially offensive, and some were demeaning to members of the Department. His conduct was clearly unbecoming that of a police officer and the record shows that it was prejudicial to the good order of the Department. It is not likely that he would repeat his misconduct, but a cloud over him would persist that would hamper his effectiveness as a police officer in the City of Fort Lauderdale.

Finding that there was a convincing showing that the officer’s conduct had a “disturbing effect “ on the community’s trust in the Department, Arbitrator Reynolds concluded:

What fundamentally matters here is the issue of [grievant’s] conduct as reasonably viewed by the Department and ultimately the community. Through that perspective the record supports a finding the [grievant’s] termination was for cause.

Arbitrator Fischer's award can be found here. Arbitrator Reynolds' award here.

exchanges amongst the officers, leads
s use was
distasteful, hat conjures up images for which a proper context does not
exist when used today by police officers
(white or black) about residents of Fort

Sunday, August 28, 2016

Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator's award

A maintenance employee of the University of Connecticut Health Systems was caught smoking marijuana on the Health Center premises during his scheduled shift. He was found to be in possession of approximately three quarters of an ounce of marijuana. His employment was terminated and the propriety of that action was submitted to arbitration for resolution

In his award, Arbitrator Jeffrey Selchick rejected grievant's explanations for his actions and found  that he had deliberately taken the marijuana to work so he could smoke it there. He concluded, however, that termination was too severe and not supported by just cause. He noted that the Health Center's policy permitted, but did not require, termination for drug related offenses. He also found mitigation in grievant's fifteen years of discipline free employment prior to the incident. Finally, while noting that grievant's job duties raised some safety and security concerns, he concluded that grievant's return to the workplace would not create a danger to persons or property. The arbitrator reduced the termination to a six month suspension, ordered that grievant be subject to random drug and alcohol test for a one year period, and imposed a last chance provision on the reinstatement.

The Health Center sought to vacate the award, contending that it was contrary to public policy. The trial court (here) granted the request to vacate, finding the reinstatement order contrary to a strong public policy against drug use in the workplace.

The Connecticut Supreme Court has now reversed that decision, effectively confirming the arbitrator's award.  State of Connecticut v. Connecticut Employees Union Independent et al.   The Court applied the standards it developed in Burr Road Operating Co. II. v. New England Health Care Employees Union to assess whether an arbitrator's award reinstating an employee was contrary to public policy. The Burr Road decision, issued after the arbitrator's award and the trial court's decision in this case, synthesized four principal factors for use in making that determination:

(1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant's conduct; and (4) whether the grievant is incorrigible.

Applying that test here, the Court determined that neither the Connecticut nor the federal drug free work place policies compelled termination as the only appropriate penalty for drug related misconduct. Regarding the second factor, the Court agreed with the conclusion of the arbitrator that grievant's misconduct "was not of such a nature that his return to work would endanger persons or property." The Court found that neither of these two factors supported a conclusion that the award was contrary to public policy.

The Court found the third factor "essentially ... neutral" noting that the risks created by grievant's misconduct jeopardized mostly him rather than the Health Center's clients or other parties. Finally, the Court accepted the arbitrator's conclusion that grievant was unlikely to engage in similar conduct in the future, especially given the significant discipline imposed (a six month suspension), the random drug and alcohol testing, and the last chance condition on his reinstatement. Nor would the award encourage other employees to engage in similar conduct.

The Court summarized its holding:

In closing, we emphasize that public policy based, judicial second-guessing of arbitral awards reinstating employees is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue. Our general deference to an experienced arbitrator’s determinations regarding just cause and the appropriate remedy is vital to preserve the effectiveness of an important and efficient forum for the resolution of employment disputes. If an employer wishes to preserve the right to discharge employees guilty of misconduct such as that at issue in this case, thereby removing the matter from an arbitrator’s purview, it remains free to negotiate for the inclusion of an appropriate provision in the collective bargaining agreement that would achieve that result.

Justice Espinosa concurred (here) but expressed a concern that rigid application of the Burr Road test may encourage arbitrators to "self insulate" their awards from review by adhering closely to the Burr Road formula and making an explicit finding on the absence of a risk of recidivism. She also cautioned that failing to consider more prominently the effect of an arbitrator's award on other employees may send an unacceptable message to other employees and the public concerning the conduct in question.

Sunday, August 21, 2016

Discipline upheld for employee's refusal to participate in meeting without union rep where no reasonable basis to fear discipline

Arbitrator Sharon Gallagher has upheld discipline for an employee who refused to participate in a meeting with her supervisor without the presence of a union representative where the arbitrator concluded that the employee had no reasonable basis to fear discipline could result from the meeting.

Grievant was employed as a social worker by Wabasha County, MN. She had a somewhat difficult history with her supervisors but the primary incident in dispute arose from an email request from grievant's supervisor requesting that she meet with him. After an exchange of messages about the subject of the meeting grievant responded:

    Because of how the last conversation with you about this topic ended I will bring a union representative as a witness in this meeting.

Thereafter, grievant exchanged email messages with the County's HR Director, repeating her belief that the meeting could result in discipline and her request for union representation at the meeting. At the HR Director's request, grievant called her. Grievant summarized that conversation is a later memo:

I placed a phone call to Krissa Bedsted (sic) from the office of Tammy Loretz. I stated that I had Tammy Loretz as my union representative and I was invoking my Weingarten Rights as I believed the conversation could lead to disciplinary action. Krissa stated that it was not appropriate to have a union representative and I was not able to invoke my Weingarten Rights. ...  Krissa stated that I would not be written up, that she could guarantee the conversation would not lead to disciplinary action. ...

Grievant indicated that "under duress" she agreed to meet with her supervisor without a union representative.

A meeting was scheduled but grievant again declined to meet without her union representative.

Several days later grievant's supervisor again emailed her, scheduling a new meeting and advising grievant that "this is not a disciplinary meeting, therefore having a union representative is not warranted." Grievant appeared at the scheduled meeting with a union representative and refused to proceed without her presence. As a result of this (and some previous issues) the County issued a letter of reprimand to grievant.

When the dispute was submitted to arbitration, Arbitrator Gallagher rejected the County's reliance on the earlier issues but upheld discipline for the refusal to participate in the schedule meeting as directed. Arbitrator Gallagher reduced the letter of reprimand to a verbal warning.

After a review of relevant case law, Arbitrator Gallagher noted that under Weingarten an employee's belief that discipline may result from a meeting must be "objectively reasonable." Concluding that this was not the case here, the Arbitrator observed:

It is of prime  importance that [grievant's] subsequent request for union representation came after ... she had received Bedsted's verbal assurance and Simonett's written assurance that no discipline would result from a meeting with Simonett. The question arises whether[grievant] could reasonably believe that the April 23rd meeting with Simonett might result in her being disciplined despite Simonett's e-mail assurance and HR Director Bedsted's verbal assurance that the meeting would not result in discipline. In my view, [grievant's] belief that she would be disciplined as a result of the April 23rd meeting with Simonett was unreasonable based on the facts of the record here. 

Finding that grievant's refusal to participate in the meeting constituted unprotected insubordination the Arbitrator concluded:

As is clear form the cases listed and described above, an employer may discipline an employee for insubordination if the employee unreasonably and repeatedly insists on union representation in a non-disciplinary meeting. Note that the magic words, "I refuse to meet with my supervisor," are not required for arbitrators and the Board to find discipline for insubordination is warranted. [Grievant's] showing up with Steward Loretz on April 23rd and handing Simonett the Weingarten  card when she had been told verbally and in writing that no discipline would come out of the meeting and nonunion representative was called for, constituted clear insubordination. [Grievant] had been ordered to attend without representation by both Bedsted and Simonett and she chose to defy those orders.

Arbitrator Gallagher's award can be found here.

Update: In Verizon California, Inc. the NLRB refused to defer to an arbitrator's award that had found that an employee was not entitled to the assistance of a union representative because the employee did not reasonably fear discipline. The Board found the arbitrator's conclusion "palpably wrong." The question of deferral to an arbitrator's award is also discussed here.

Sunday, August 14, 2016

Eighth Circuit on the law of the shop and the scope of the issue to be decided

The Eight Circuit recently issued its decision on the NFL's appeal of the District Court's decision vacating the Adrian Peterson arbitration award. The earlier proceedings are discussed at Adrian Peterson, arbitration and the law of the shop. As noted there, the District Court vacated the award of the arbitrator upholding the six game suspension of Peterson. The court found that the award ignored the "law of the shop" because the arbitrator allegedly ignored an earlier award involving Ray Rice which it believed limited the allowable suspension to two games. The court also found that the arbitrator had exceeded his authority because he "strayed beyond the issues submitted by the NFLPA."

The Circuit overturned both conclusions

Initially it rejected the claim that the arbitrator exceeded his authority when he allegedly  retroactively applied a "new" disciplinary policy,contrary to the "law of the shop." The Court observed:

An arbitrator acts within his authority as long as he is arguably construing or applying the contract, even if a court disagrees with the arbitrator's construction or application. Misco, 484 U.S. at 38. The same holds true for the law of the shop: as long as the arbitrator is arguably construing or applying arbitral precedents, a court's disagreement with the arbitrator's application of precedent is not sufficient grounds to vacate an arbitration decision.

The Circuit Court found that the arbitrator analyzed the Union's claims and the prior awards the Union maintained supported its position. While he disagreed with the Union's position, he was acting within his authority in reaching his conclusion.

On the second point the Court noted:

...the Players Association contends that the arbitrator exceeded his authority by altering the issues presented for decision. It argues that the arbitrator was limited to adjudicating "`the pure legal issue' of whether the New Policy could be applied retroactively. The district court agreed, concluding that the arbitrator "strayed beyond the issues submitted by the NLFPA."

...[i]t is true that "[w]hen two parties submit an issue to arbitration, it confers authority upon the arbitrator to decide that issue." Local 238 Int'l Bhd. of Teamsters v. Cargill, Inc., 66 F.3d 988, 990-91 (8th Cir. 1995) (per curiam) (first emphasis added). But the parties here did not stipulate to the issues for arbitration. The scope of the arbitrator's authority, therefore, was itself a question delegated to the arbitrator. W.R. Grace & Co. v. Local Union 759, Int'l Union of United Rubber, Cork, Linoleum & Plastic Workers, 461 U.S. 757, 765 (1983). "It is appropriate for the arbitrator to decide just what the issue was that was submitted to it and argued by the parties." 

The Court determined that "it is not the exclusive prerogative of the party seeking arbitration to define the issue for arbitration." It found that the NFL was free to challenge the premise contained within the Union's proposed issue, i.e. that the policy was a new one authorizing discipline previously unavailable. 

Finally, the Court addressed two claims that the District Court found unnecessary to consider. It rejected the claim the Arbitrator Henderson was "evidently partial," and that the arbitration was "fundamentally unfair."