Several recent awards

Several arbitration awards are the subject of recent news reports.  In one, Arbitrator Phil King ordered the reinstatement of a 911 dispatcher who had been dismissed for her handling of a call involving an officer’s shooting. Arbitrator: Dispatcher fired after Arlington officer's shooting should get job back | (Star-Telegram). The second involved the dismissal of two police officers for their alleged involvement in a controversial arrest. Arbitrator: Two Santa Fe cops wrongfully fired, get back pay « Santa Fe Crime.  Arbitrator Phillip Davis ordered both officers reinstated. A third involved the demotion of a police sergeant who claimed that the demotion was in retaliation for his support of the mayor’s opponent in an election. Arbitrator reverses demotion of Hialeah sergeant - Hialeah - MiamiHerald.com.

Award in Verizon Layoff Arbitration

Arbitrator Jack Tillem has issued an award in a dispute concerning the layoff provisions of the Verizon/CWA labor agreement. The dispute arose when Verizon notified the Union that it would be laying off certain employees in New York City.  The Union claimed that the contract required that layoffs take place in inverse seniority order from among all employees in the affected title in the 13 state bargaining unit. Verizon claimed that the relevant language limited the layoffs to employees in the affected work group.

Agreeing with Verizon, Arbitrator Tillem found the language of the agreement was not ambiguous and, by its terms, supported the Company’s actions.  He also noted the practical difficulties the Union’s interpretation would create, and concluded that the failure of the parties to address these difficulties in contract language tended to suggest that the union’s interpretation was not the intended one. A copy of Arbitrator Tillem’s award can be found here.

Three awards in pharmacy related cases

    The California law firm Kelly, Hockel & Klein links to three recent arbitration awards (here, here and here ) upholding the dismissal of pharmacy employees. Arbitrator Walter Daugherty upheld the dismissal of an employee for allegedly falsifying company records by claiming falsely that customers had refused to sign certain forms. Arbitrator Frederic Horowitz upheld the dismissal of a clerk who sold alcohol to a minor (an undercover decoy) without requesting an id verifying age.   Arbitrator Frank Silver upheld the dismissal of a pharmacy employee whose name appeared on the Office of Inspector General’s list of persons excluded from participating in Medicare and Medical programs as a result of a conviction for Social Security related fraud.

Federal Agency "taken to the woodshed" over layoff.

Joe Davidson at the Washington Post has a column reporting on a recent arbitration award involving a layoff by the Broadcasting Board of Governors. Arbitrator thrashes Cuba Broadcasting over worker treatment.  According to Davidson, who includes a link to portions of the award in his column, the Agency was “taken to the woodshed” by the arbitrator, who found the Agency improperly manipulated  the layoff process to target particular employees.

Rite Aid must comply with Card Check Agreement

A court has enforced an award of Arbitrator Richard Kasher, requiring Rite Aid to comply with the terms of a neutrality and card check agreement between Rite Aid and UFCW Local 1360. Rite Aid of New Jersey Inc. v. United Food and Commercial Workers Union, Local 1360.

Rite Aid and Local 1360 had entered into an oral card check/neutrality agreement in November of 1999. The parties subsequently entered into a series of collective bargaining agreements, all of which contained recognition language including an after acquired stores clause. The clause extended the bargaining unit to stores added via an NLRB election or “…other demonstrations of the Union status acceptable to the employer…” Rite Aid recognized the Union for approximately sixty three stores through the card check procedure, but later began insisting on an NLRB election. The union filed a grievance, claiming that the employer had improperly refused to accept the card check procedure, in contravention of the agreement and past practice. The arbitrator sustained the grievance, and Rite Aid went to court seeking to have the award vacated. Rite Aid argued, inter alia, that the arbitrator “failed to draw from the essence of the 2005 CBA and exceeded his power by amending or altering the 2005 CBA”.

The court rejected Rite Aid’s efforts and enforced the award. Noting the limited review of an arbitrator’s award, the court held that arbitrator’s award was grounded in the contract, and that the arbitrator could conclude that the language of the recognition clause was ambiguous and that the employer had agreed to accept the card check procedure. While it noted that it found Rite Aid’s interpretation of the CBA to be more persuasive, it had no basis to set aside the award.

Update: The Third Circuit's decision affirming the District Court is discussed here.

Arbitrator's modification of discipline not barred by contract

          The Third Circuit has affirmed a district court's decision enforcing an arbitration award.Wilkes Barre Hospital v. Wyoming Valley Nurses Ass'n.  Grievant had been dismissed for alleged patient care issues and insubordination. The arbitrator concluded that the employer did not have just cause for the dismissal and ordered grievant reinstated with full seniority and benefits, less a 10 day suspension. The employer sought to set  aside the  award, claiming the contract limited the arbitrator to either upholding the discipline in whole or reversing it entirely. The employer maintained that contract language that "The arbitrator shall have the authority only to deny or uphold the grievance" prohibited the arbitrator from modifying the discipline.
         The court noted that while the parties can limit an arbitrator's authority by contract, the language here did not explicitly limit the arbitrator's authority. Other language in the contract, referencing the discretionary award of damages, tended to support the arbitrator's interpretation and, in any event, the arbitrator's interpretation was grounded in the language of the contract and was entitled to deference. Accordingly the court affirmed the enforcement of the award.

Teacher discipline, student witnesses

          The Canadian law firm Miller Thomson has an update concerning the potential need to call student witnesses in an arbitration over a teacher's discipline. Student witnesses might be necessary to prove case. The update highlights the practical problems faced by a school board in proving misconduct in a case involving student/teacher interaction without the student's testimony. In the award discussed, the arbitrator rejected many of the school board's claims, finding that they were not supported by probative evidence. The arbitrator noted "While I recognize the practical difficulties the Board faces in locating former students to testify in a case of this nature and accept that I am entitled to rely on evidence that is not admissible in a court of law, I nevertheless substantially agree with the Association that I should not rely entirely on hearsay evidence to support the essential facts forming the basis of the Board’s discipline in the circumstances of the present case."
Similar concerns often arise from discipline cases involving  customer complaints  or allegations of customer mistreatment.

Zero Tolerance policy inconsistent with cba, reinstatement award confirmed

   The New York Appellate Division has confirmed an arbitration award reinstating an employee terminated after testing positive on a random drug test. The employee, who was employed as a school bus driver, tested positive for marijuana.  The parties’ collective bargaining agreement provided for progressive discipline “except for the most serious offenses.”  The cba also provided that “[s]uspension  without pay or discharge may be invoked with less than two (2) written warnings where the employee’s conduct creates a danger to the health, safety or welfare of staff, students and/or the general public…”. A positive drug test was explicitly recognized in the cba as falling within these parameters.

The school board asserted that it had a zero tolerance policy concerning positive drug tests, and two school board employees testified that the policy was the basis for the grievant’s dismissal and that they did not consider grievant’s prior work history or other circumstances in deciding to dismiss.

The arbitrator concluded that the employer violated the contract by failing to exercise any discretion in regard to the punishment to be imposed, relying instead on a policy it believed required termination.

The school board sought to vacate the award and the union sought to enforce it. The lower court granted the school board’s request, and the union appealed.The Appellate Division reversed. In the Matter of Arbitration Between Shenendehowa Central Scool District Board v. CSEA The court noted that despite the testimony about a zero tolerance policy, no such policy was contained in the cba nor was any such written policy produced. The court further noted that the drug testing policy that was produced contained provisions for follow up testing and other conditions for employees returning to work after testing positive.

The court concluded:

                        The arbitrator did not hold that petitioner violated the CBA merely because petitioner     discharged respondent; the arbitrator held that petitioner  violated the CBA by refusing to exercise any discretion in regard to the punishment to be imposed, with petitioner instead imposing what it believed  to be mandatory termination

The court found the award did not violate public policy, and that the arbitrator did not exceed his powers under the cba. As a result, the court reversed the lower court and confirmed the award.

Shared “personal life experience” does not create evident partiality

        A recent case from the Supreme Court of Delaware has addressed the issue of an arbitrator’s obligation to disclose a life experience which may be shared with one of the parties to an arbitration. Delaware Transit Corp. v. Aalgamated Transit Union Local 842, et al.  Grievant was dismissed by Delaware Transit Corporation (DTC) after his eighth “miss”, defined as a failure to report on time for a scheduled work day. According to grievant’s testimony, his attendance problem was caused, at least in part, by his need to care for his mother in law, who was suffering side effects from chemotherapy  treatment for cancer. The arbitrator sustained the grievance, reinstating the grievant with back pay, less interim earnings.

        DTC moved to vacate the award, due to the claimed appearance of bias or partiality on the part of the arbitrator. The employer argued that the arbitrator should have disclosed that his wife had died of cancer a few months before the arbitration hearing. According to DTC this created the appearance of bias or partiality because of grievant’s situation with his mother in law.  The lower court granted the Union’s motion for summary judgment and DTC appealed.

        On appeal, the Delaware Supreme Court noted “ The only grounds for vacating the award that DTC raises in its opening brief …is that the integrity of the arbitration was compromised because the Arbitrator’s shared life experience gave the appearance of bias or partiality”.

        After reviewing the AAA Labor Arbitration Rules, the Code of Professional Responsibility for Arbitrators of Labor Management Disputes, and prior cases dealing with the evident partiality standard, the Court concluded "The alleged bias or partiality which DTC attributes to the Arbitrator in this matter fails to meet the 'evident partiality' standard. The mere fact that an arbitrator may share a personal life experience with a party or party’s agent is legally insufficient to constitute a substantial relationship that a reasonable person would conclude is powerfully suggestive of bias. We hold that arbitrators are not disqualified because of their shared life experience with a party or party’s agent and that the disclosure of a shared life experience is not mandatory."

       

        

                           

                                   

                      

                       

         

           

Same-sex couple entitled to benefits, arbitrator rules

        Arbitrator Lois Hochhauser issued an award upholding a grievance filed on behalf of two Baltimore County police officers, finding that the county had improperly refused to provide benefits to their same- sex spouses. Baltimore County police officers win same-sex benefits claim - baltimoresun.com. The arbitrator rejected the County’s claim that Maryland did not recognize same sex marriages performed in a different jurisdiction. Both grievants had been married in jurisdictions recognizing same sex marriages.

         The arbitrator held that the recognition of same-sex marriages conducted in states where they are legal is not against the public policy of the State of Maryland noting that Maryland had never enacted a law barring same-sex marriages.

A summary prepared by Lambda Legal, which assisted in the presentation of the grievance, can be found here

Massachusetts court upholds award denying teacher’s claim

                The Supreme Judicial Court of Massachusetts has upheld an award denying the claim of a teacher that his employment was terminated without the statutorily required just cause. Atwater v. Commissioner of Education. The teacher had been dismissed for conduct he allegedly engaged in with a student.

                The court initially rejected the claim that the statute authorizing the arbitration (G.L. c71, Sec. 42) was unconstitutional as an improper delegation of judicial and government power to an individual (the arbitrator). The court concluded that:

the statute's provision authorizing arbitration of a principal or superintendent's dismissal decision does not interfere with core judicial functions. The provision of professional teacher status, together with a limitation of grounds for dismissal, and provision of authority on principals and superintendents to render dismissal decisions, as well as arbitral review of such decisions, are, as we previously stated, matters of legislative judgment. These aspects of the statute do not implicate or interfere with core judicial functions. Further, the statute's provision of judicial review of the arbitrator's decision enables a judicial function, albeit a limited one.                       

The court also rejected a challenge to the award based upon the arbitrator’s failure to recuse herself. During the arbitration, the school district proposed a settlement which included an offer to allow the teacher and his counsel to have an ex parte meeting with the arbitrator regarding her impression of the case after the close of the teacher’s testimony. The parties disagreed on whether the arbitrator offered to recuse herself if the case didn’t settle.

 During the meeting the Arbitrator observed that, based upon what she had heard so far, she would uphold the district’s action, but that more evidence might cause her to change her mind.

The case didn’t settle, and the arbitrator declined to recuse herself from hearing the remainder of the case. She thereafter issued an award upholding the termination.

The teacher sought to vacate the award “because the arbitrator engaged in misconduct and exhibited bias, prejudicing [teacher] by her attempt to mediate a settlement at the district's request, and by her refusal to recuse herself from conducting the arbitration after such mediation was unsuccessful.”

The court found no inappropriate action on the part of the arbitrator. It noted she did not receive any information ex parte from the teacher or his attorneys during the meeting, nor did she provide the district any information from the meeting. The court concluded that this conduct did not amount to mediation and did not support a claim of bias.  Accordingly it upheld the award.

Kaiser seeks to compel arbitration of dispute with CNA

        Kaiser Permanente has filed suit seeking to compel arbitration of its grievance against the California Nurses Association (CNA). Kaiser's grievance alleges that CNA violated the no strike clause in its contract by calling a one day sympathy strike. It further claims that CNA has asserted that only the Union may file a grievance under the contract.

        CNA claims that the strike was protected and that the lawsuit is frivolous.

        The parties' competing press releases can be found here and here

No layoff clause not subject to arbitration

Reversing the lower court, the New York Court of Appeals has concluded that a dispute between the Village of Johnson City and the Johnson City Professional Firefighters Association concerning a no layoff provision of their agreement was not subject to arbitration. The court noted it had previously ruled that, while a job security provision in a public sector contract was not contrary to public policy, it must be explicit. The clause in issue here provided “A. The Village shall not lay-off any member of the bargaining unit during the term of this contract. B. The Village shall not be required to 'back fill' hire additional members to meet staffing level of expired agreement." 

The dispute arose when the Village voted to abolish various positions within the government, including six firefighter positions, citing budgetary necessity. The union claimed this was in violation of the no layoff provision, and ultimately sought arbitration of the issue. Because the Court found the no layoff provision did not, in and of itself, explicitly prohibit the Village from abolishing firefighter positions out of budgetary necessity, it found the provision insufficiently explicit to support the union’s claim. As a result the Court concluded  

Simply put, because the clause is not explicit, unambiguous and comprehensive, there is nothing for the Union to grieve or for an arbitrator to decide. Having concluded that this dispute is not arbitrable for reasons of public policy, we need not reach the issue of whether the parties agreed to arbitrate.

http://law.justia.com/cases/new-york/court-of-appeals/2011/191.html

Delay in investigation results in reinstatement

                An arbitrator ordered the city of San Jose California to reinstate with full back pay a police officer who had been terminated for allegedly mishandling dozens of sex assault cases.  According to a report in MercuryNews.com, Arbitrator William A. Reeves found that the city had failed to meet the legal deadline for concluding its investigation. San Jose police officer fired for mishandling sex cases gets her badge back - San Jose Mercury News

Ninth Circuit rejects claim union must prove absence of just cause

            The Ninth Circuit, reversing the district court, refused to set aside two different arbitration awards reinstating employees.

            A majority of the court found the grievances involved “classic examples of arbitrable disputes” and saw “no reason to depart from the standard rule of deference.”

The dissenting judge, however, would have affirmed the district court in one of the two cases.

            The contract provided that “the arbitrator shall have no authority to modify or alter the discipline imposed by the [employer] unless it is established that there was not just cause for the discipline.” The dissenting judge determined that one of the arbitrators had interpreted the language, albeit incorrectly, and the award was thus entitled to deference. The second arbitrator, however, “ignored [the language] in favor of his own preferred approach…” Finding that the union had not established the absence of just cause, the dissenting judge would have affirmed the lower court’s decision vacating the award.

            The court’s decision can be found here. The district court opinion can be found here

Awards in two recent cases reinstate public safety employees

            Arbitrator Jonathan Klein ordered Lorain, Ohio to reinstate (without back pay) a police officer who had been dismissed for allegedly stalking a police dispatcher, unlawfully stopping a car he thought she was in, and lying to his supervisors. According to a report in the Chronicle-Telegram, Arbitrator Klein found the termination “excessive under the circumstances” and that while the officer’s conduct violated department policies, it did not rise to the level of intentional misconduct. Fired Lorain cop ordered reinstated.

            In another Ohio case, Arbitrator Jerry Sellman ordered the city of Mansfield to reinstate, with six months back pay, a police officer who had been dismissed for allegedly mistreating a person in custody. Mansfield police officer reinstated after ruling by arbitrator (Mansfield News-Journal). Arbitrator Selman found that while the officer admitted accidentally striking a person in his custody while trying to gain control, the act was not intentional and the officer had not been untruthful during the investigation. The arbitrator found that the evidence supporting the allegations was not “clear and convincing” and was insufficient to support the termination.

Violence in the Work Place – Canada

 The Canadian law firm Stikeman Elliott has an enlightening analysis of a recent arbitration award concerning the termination of an employee for making death threats to a coworker. The arbitration award is one of the first since recent amendments to the Occupational Health and Safety Act, imposing new obligations on employers in responding to threats in the workplace. The firm’s post has a link to the award, which contains a detailed discussion of pre-amendment decisions, and the changes wrought by the amendments.

Another public policy reversal

The Court of Appeals for the State of Washington has affirmed the refusal to enforce an arbitration award reinstating a Port of Seattle employee fired for hanging a noose at work. International Union of Operating Engineers, Local 286 v. Port of Seattle.

The grievant had hung the noose on a rail in a high traffic work area. After another employee complained, the Port conducted an investigation and concluded that the grievant had violated its zero tolerance anti-harassment policy and terminated his employment.  The arbitrator, applying the “Seven Tests” of just cause, found that the Port had not established that the discipline was  reasonably related to the seriousness of the employee’s misconduct and had failed to give appropriate weight to the employees work record. Finding grievant’s conduct “more clueless than racist”, the arbitrator converted the termination to a twenty day suspension.

Affirming the lower court’s decision refusing to enforce the award, the Court  noted:

                        none of the seven questions or the arbitrator's analysis of the appropriate

            discipline take into account the dominant public policies of the [Washington

            Law Against Discrimination], including a Washington employer's affirmative

            duty to impose sufficient discipline to "send a strong statement" adequate to

            persuade both [grievant] and potential violators to refrain from

            unlawful conduct. By imposing such a lenient sanction, the

            arbitrator minimized society's overriding interest in

            preventing this conduct from occurring and interfered with the

            Port's ability to discharge its duty under the WLAD to prevent

             future acts of discrimination.

While agreeing with the  lower court’s refusal to enforce the award, the Court also found  that the lower court erred in fashioning its own discipline for the grievant. The Court remanded the case “for further arbitration”.

Update: The Washington Supreme Court has reversed this decision and upheld the arbitrator's award. The Court's decision is discussed here.

Award overturned as contrary to public policy of non-discrimination

The North Andover Eagle Tribune has an article reporting on the Massachusetts Appeals Court decision upholding the setting aside of an arbitration award reinstating two Middleton Jail corrections officers.  State Appeals Court upholds firings of jail guards for racist posts. The two individuals were terminated as a result of what the court determined to be racist posts on a union run web site. The arbitrator had overturned the terminations, but the court concluded that “Non-discrimination is integral to the proper performance of the duties of the employees, who are correctional officers”. As a result, the court found that the award of reinstatement contravened a strong public policy against discrimination.

Coverage of Neutrality agreement subject to arbitration

            Judge Lewis Babcock of the US District Court for the District of Colorado granted summary judgment to Communications Workers of America in their dispute with Avaya concerning the applicability of the parties’ Neutrality and Consent Election (NCE) agreement to a particular group of employees.

             CWA had given formal notice to Avaya, pursuant to the NCE, that it intended to start a formal organizing drive among a group of “backbone engineers.” Avaya disputed the applicability of the agreement to those employees, contending that they were not “non-management employees” and therefore were outside the scope of the agreement. After unsuccessfully pursuing a grievance, CWA sought to arbitrate the applicability of the agreement to these backbone engineers. Avaya refused to arbitrate and CWA filed suit seeking an order compelling arbitration.

            Finding the dispute within the scope of the arbitration provisions of the collective bargaining agreement, the court ordered arbitration. The court noted the company’s contention that it was undisputed that the engineers were not non- management employees, but concluded that “such determination is an assessment of the underlying merits before an arbitrator and, as such, is not before me.” The court also rejected the contention that the matter was within the exclusive jurisdiction of the NLRB

            A copy of Judge Babcock’s decision can be found here.

Update: The 10th Circuit has reversed the decision of Judge Babcock. The Court's decision is discussed here.

Arbitration award did not violate TARP

            In Royal Bank America v. Kirkpatrick, involving an arbitration under an individual employment agreement, the District Court for the Eastern District of Philadelphia refused to set aside an arbitration award claimed by the employer to require it to violate TARP.

            Royal Bank and Kirkpatrick were parties to an agreement which provided that the bank could terminate Kirkpatrick’s employment without cause on ninety days written notice. Notwithstanding this language, the bank terminated his employment after only eight days written notice. In an arbitration pursuant to the parties’ agreement the arbitrator awarded Kirkpatrick lost pay for the remainder of the ninety day period.

 Rejecting the bank’s action to set aside the award, the court noted that, at least in the absence a finding of “manifest disregard” of federal law, it was without jurisdiction in what was essentially a state court claim.  Noting that there was a significant question of whether the ‘manifest disregard” standard was still good law, the court noted that,  even assuming this was the correct standard for assertion of federal jurisdiction, the award  did not rise to that level. The court noted the arbitrator concluded that the award fell within an exception for “payments for services performed or benefits accrued” and was therefore not a “golden parachute” payment, prohibited by TARP.

            Without deciding whether that analysis was correct, the court determined the arbitrator clearly considered, rather than “disregarded” federal law and therefore remanded the case to state court.

Arbitrator orders halt to layoffs and issues broad make whole remedy

Arbitrator Edwin Benn has issued a decision ordering the State of Illinois to cancel pending layoffs and facility closings and to reinstate and make whole any employee laid off in what the arbitrator determined to be a violation of a cost concession agreement.  That agreement had been entered into between the State of Illinois and AFSCME Council 31, and provided, in return for concessions from the Union, “there shall be no temporary or indeterminate layoffs through the end of FY2012… nor shall the state close any facilities…”

Notwithstanding the language of the agreement, the state announced the layoff of over 1,600 employees represented by the union and the closing of seven mental health and correctional facilities.

The state did not dispute that the layoffs and closings were contrary to the language of the agreement, but argued that the Illinois Public Relations Act permitted its noncompliance with the agreement. The state also maintained that the state’s constitution supported its actions.

Rejecting both of these positions, Arbitrator noted he was bound by the undisputed language of the agreement, and that any statutory or constitutional arguments were for a court to address. The arbitrator’s award prohibited the layoff of employees represented by the union through June 30, 2010, and ordered the state to reinstate and make whole any employee laid off before that date.  

The arbitrator further held:

[I]n the event State goes forward with the  announced layoffs and facility closures which have been found by me to be in clear violation of the Cost Savings Agreements …and in the event those adversely impacted employees lose their homes or cars or are forced to move from their residences as a result of the State’s clear violation of the Cost Savings Agreements which places the employees in a position of being unable to make timely payments on those items or should those employees suffer any other related losses, then as part of the make whole remedy, those employees shall be compensated by  the State for those losses in addition to lost backpay and benefits.

A copy of Arbitrator Benn’s award can be found here.

Arbitrator's invocation of collateral estoppel not improper

Ross Runkel at  LawMemo reports on a Hawaii Intermediate Court of Appeals case upholding the authority of an arbitrator to consider the issue of collateral estoppel in ruling on the union’s motion for summary disposition. Interestingly, the concurring opinion found that the arbitrator erred in his analysis of the issue, but not to the level warranting the invocation of the public policy exception to enforcement of arbitration awards.    

Grievance not brought in "good faith" not subject to arbitration

In a case involving application of a somewhat unusual arbitration provision, the Fifth Circuit reversed a decision of the district court compelling arbitration.

 PACE Local 4-12 had sought to arbitrate two grievances. The first involved a claim that Exxon Mobil had improperly contracted out the loading and unloading of rail cars at its Baton Rouge facility. The second claimed that the employer had improperly eliminated two bargaining unit positions (although no unit employees were laid off).

The contract defined an “arbitrable grievance” as “a good faith claim … that the other party has violated a written provision of this agreement.”

The district court had ordered arbitration of the first grievance but declined to compel arbitration of the second. Reversing in part, the Fifth Circuit concluded that express language of the cba authorizing the company’s actions overcame a claim that it had breached another provision that the exercise of any right under the agreement be made “in a reasonable manner and in good faith”.

Recognizing that ordinarily a court should not address the merits of a grievance in determining arbitrability, the court concluded that the express language of the agreement authorizing the company to contract out the work precluded a finding that the grievance could be arbitrated in “good faith”. The court's opinion can be found  here .

"Subject to termination" does not equal automatic termination.

The Sixth Circuit has upheld the dismissal of an action seeking to set aside an arbitration award.  Titan Tire had dismissed an employee under its drug policy, which provided that employees who test positive for drugs were “subject to termination”. The arbitrator converted the termination to a suspension, concluding, contrary to the employer’s argument, that “subject to termination” did not mean automatic termination. The arbitrator found the termination contrary to other language in the cba which required notice to the employee of the consequences of a failed drug test. Noting the narrow scope of review of arbitration awards the court found no basis for refusing to enforce it. The court’s decision can be found here.

Arbitrator Jonathan Dworkin's award can be found here. The District Court's opinion here.

Update: Two awards discussing the impact of policies providing for discipline "up to termination" are discussed at Just cause, progressive discipline and zero tolerance.

Arbitration of employment discrimination claims under a CBA

Dan Ratner has an essay at SCOTUS  about the impact of Pyett and the arbitration of employment discrimination claims in the context of a collective bargaining agreement.  The essay discusses some of the concerns of the union side bar with the decision.

Palm Bay Ordered to reimburse employees for furlough days

Arbitrator James Odom determined that the city of Palm Bay Florida must reimburse employees for two furlough days imposed because of budgetary issues. Arbitrator Odom rejected the city’s contention that the contract language that allowed them to lay off employees also allowed them to furlough them. http://www.floridatoday.com/apps/pbcs.dll/article?AID=2011109140309

UAW To Arbitrate Equal Treatment Grievance With FORD

   UAW will proceed with an arbitration claiming that Ford breached an agreement for equal treatment of hourly and salaried workers. The grievance claims that Ford increased white collar salaries and reinstated their 401(k) match while failing to make similar provisions for unionized employees. http://www.reuters.com/article/2011/09/16/uaw-ford-idUSS1E78E1Z020110916