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