Wednesday, September 21, 2011

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 .

Sunday, September 18, 2011

"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.

Saturday, September 17, 2011

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.

Friday, September 16, 2011

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.

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.