Sunday, November 27, 2011

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.

Friday, November 18, 2011

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, 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

Sunday, November 13, 2011

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

Tuesday, November 8, 2011

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.