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.