Employer must meet and confer before correcting error

The California Federation of Interpreters reports on an award it received affirming the obligation of the Sonoma County (California) Superior Court to meet and confer with the Union before making changes to the policy on reimbursement for continuing education expenses, even though the changes were consistent with the contract. CFI Vindicated in Sonoma Arbitration.The arbitrator rejected the employer's claim that the past practice it changed was inconsistent with the contract and that it was under no obligation to meet and confer before bringing the practice into compliance with what it believed the contract required.
Arbitrator Paul Staudohar's award can be found here.

Confirmation of award denied; no noncompliance shown

The Chicago Regional Council of Carpenters prevailed in an arbitration against Onsite Woodwork Corporation concerning the proper compensation for employees who had been recalled from layoff. The arbitrator's award provided "Any grievant recalled from layoff after six months and removed from the bargaining unit must be reinstated and dues and initiation fees, if any, restored to them."

The Union filed suit seeking to confirm the award, and claimed that the employer's requiring grievants to undergo a new orientation period violated the award. The court determined that requiring a new orientation period was not inconsistent with the award, and in fact was recognized by the arbitrator as appropriate. Finding no other evidence that the employer was not complying with the award, the court rejected the Union's efforts at enforcement.

The Court observed:

Since Onsite has complied with the award, it would be improper for the Court to confirm the arbitration award at this time. Article III of the United States Constitution restricts the judicial power of the federal courts to "cases" and "controversies." U.S. Const. Art III, § 2. In addition, the ripeness doctrine dictates that courts should decide only existing substantial controversies, not hypothetical questions and possibilities. See Wisconsin Right to Life State Political Action Committee v. Barland, 664 F.3d 139, 148 (7th Cir. 2011).
In applying these principles to requests to confirm arbitration awards between labor and management, the majority of courts hold that the award should not be confirmed where there is no live and actual dispute between the parties

Agreeing with that majority of courts, the U.S. District Court for the Northern District of Illinois dismissed the Union's action, but noted that should a bona fide dispute subsequently arise, the Union could seek to confirm the award at that time. The Court further noted the five year statute of limitations for enforcement of arbitration awards in the Seventh Circuit, finding any prejudice to the union unlikely.

The court's decision  can be found here.

Termination of Deputy for release of law enforcement information upheld

Grievant was employed as a Deputy by Wright County Minnesota Sheriff's Office. Her employment was terminated for allegedly sharing private law enforcement information with a cousin and lying about it during an investigation of the issue.

Grievant was alleged to have provided her cousin, who was in a custody dispute with the mother of his child, with law enforcement information concerning the mother's release from the hospital and the possible existence of outstanding warrants. The mother had previously complained to the Sheriff's Office about a claimed improper disclosure. An investigation of that incident was inconclusive, but the Sheriff counseled Grievant about improperly sharing law enforcement information. When the mother again complained about the release of confidential information the Sheriff questioned Grievant about the allegation. She initially denied having released information, but when confronted with a recording of a voice mail message she had left for her cousin acknowledged sharing information with him. Her employment was terminated and the Wright County Deputies Association filed a grievance on her behalf and pursued the matter to arbitration.

Arbitrator Stephen Befort denied the grievance. He overruled a challenge to the admissibility of the recorded voice mail message and concluded that Grievant had engaged in the conduct alleged. He also found Grievant's claim that she had not recalled leaving the message not credible.

Rejecting the Union's argument that termination was too severe for the offenses alleged, the Arbitrator noted:

Law enforcement officers are held to a high standard of conduct because they serve as society’s thin blue line of security and safety. As Sheriff Hagerty aptly summarized, [Grievant's] conduct
falls short of this norm in that it undermines the integrity of the Wright County Sheriff’s Office and violates the public trust in fair and unbiased law enforcement. Under these circumstances, the Employer’s discharge decision constitutes an appropriate remedy. 

Arbitrator Befort's award can be found here.

Postal Service can't charge Union for ergonomics information request

Arbitrator Shyman Das has upheld a grievance filed by the APWU, finding that the Postal Service violated its cba by requiring the Union to pay for information requested in connection with a Joint Union Management Committees. The cba created a Joint Labor Management Safety Committee and a Joint Labor Management Ergonomics Committee, with a purpose "to evaluate and make recommendations on all aspects of the Employer's respective Safety and Ergonomics Programs, to include program adequacy, field implementation, studies for improving the work environment, training, and unsafe conditions."

A dispute arose between the parties concerning a Union request for information in connection with certain ergonomics issues. The Union alleged that the Postal Service breached its obligations under the contractual joint committee language by demanding that the Union pay
the costs incurred in responding to the Union's request. After addressing other issues raised by the Union's grievance, Arbitrator Das addressed the payment issue. In finding the Postal Service's position inconsistent with its contractual commitments the Arbitrator noted:

The remaining issue concerns payment by the Union for information it requested from the Postal Service. As the Postal Service asserts, the provision in Article 31.3 which permits the Postal Service to require the Union to reimburse it for costs incurred in obtaining information it requests to carry out its responsibilities as bargaining representative does not carve out an exception for information relating to safety and health or Article 14 issues. Nor does Article 14 expressly address payment for information requested by the Union. But charging the Union for information it reasonably requests in good faith to fulfill its joint role and obligations under Article 14 in relation to issues before the National Ergonomics Committee is not consistent with the overall structure and tenor of Article 14.  Moreover, the Postal Service did not present specific evidence contradicting Bell's testimony that the Union historically has not been charged for such information. Accordingly, the Postal Service is directed to provide information reasonably requested by the Union in good faith to fulfill its role and obligations under Article 14 in relation to issues before the National Ergonomics Committee without exacting payment therefor. (footnote omitted).

APWU links to Arbitrator Das' award here.

Importance of live witness testimony

The City of Miami terminated the employment of a police officer for conduct he was alleged to have engaged in in connection with the arrest of two individuals. His conduct was also the subject of threatened litigation, an Internal Affairs investigation and a criminal investigation. The officer grieved his termination and the matter proceeded to arbitration. At the arbitration hearing neither of the two arrested individuals testified. The City instead relied on statements that they had made in connection with the other proceedings. Grievant testified and denied any misconduct.

After extensively reviewing the evidence, including the statements of the two arrested individuals, Arbitrator M Scott Milinski concluded that the City had not established just cause for the termination.
Arbitrator Milinski observed that there was "no real justification for [the two arrested individuals] failure to testify subject to cross examination." While a 911 tape was introduced which captured some of the events, the Arbitrator noted the tape ended before the conclusion of the incident, and that "Only the [officer] testified as to what occurred during the 2 minute gap."

The Arbitrator noted:

There is another side to this incident. However, [the two] did not testify at the hearing; and could not be cross examined.
                                                         ***
This Arbitrator fully understands that had [the two] testified in the arbitration hearing his findings may be different. Their testimony is essential to many aspects of the City's case. Just as important, the discharged Grievant was not afforded the opportunity to confront his accusers at the arbitration hearing and test their credibility and demeanor. Further, this Arbitrator was not able to hear critical witness testimony.
                                                       ***
In conclusion, the City has not shown sufficient cause under the Collective Bargaining Agreement to discharge the Grievant.

The Miami Herald reports on the case, Miami Beach cop fired in gay bashing case to get his job back, and links to the full text of the Award here.

Arbitration award reducing pay enforced

The cba between Giant Eagle and UFCW Local 23 provided that the Company could "increase staring rates, grant bonuses, individual increases, and any other forms of incentives. The increases can be done by department and/or store." The contract obligated Giant to notify and meet with the Union prior to implementation but also provided "All of these changes can be done at the Company's sole discretion and any of these changes may be rescinded and/or modified".

Giant gave wage increases to 25 employees at one of its stores, and the Union filed a grievance claiming that it had not been properly notified. The grievance proceeded to arbitration and the arbitrator ordered Giant to stop granting raises "without first obtaining concurrence from the Union", and to rescind the increases already given. The arbitrator rejected a request to increase wages of other employees as a remedy.

Giant filed suit seeking to set aside the award, arguing that the requirement that it obtain the Union's consent prior to implementing a wage increase was contrary to the terms of the cba and that the arbitrator had exceeded his authority in finding both notice and consent required.

Noting the narrow scope of review of an arbitrator's award, the U.S. District Court in Pennsylvania rejected the Company's effort. The Court found sufficient evidence that the arbitrator's award was based on an arguable interpretation of the contract, all that was required to enforce it. The court noted that the arbitrator found certain provisions of the contract ambiguous and concluded that the "sole discretion" provision applied only to increases done on a store wide or department basis, not to individual employees.

The Court enforced the arbitrator's award, and his remedy, concluding:

 The Court understands that the net result of the Union’s dispute is that some of its members will have their raises rescinded - - in other words, the action of the Union in the arbitration will have the effect of taking away raises of certain members, thereby causing harm to its own members. However, the Court’s inquiry is not which reading of Article 14 the Court agrees with or how this Court would have determined this dispute. Arbitration Awards are given "a strong presumption of correctness" by District Courts. ... After review of the Arbitrator’s Award, the Court finds that it can be rationally derived from the issue submitted before the Arbitrator and the Labor Agreement that was in dispute. Therefore, the Award will be enforced.

The Court's opinion can be found here.

City succeeds in setting aside award it won

The Rhode Island Laborers' District Council, Local 1033 filed a grievance, asserting that the City of Providence had violated a "stipulated award" calling for minimum staffing levels for the City's Department of Communications Police Control Center. The arbitrator concluded that while the City had in fact missed the staffing level for a period of twenty minutes, the violation was de minimis and denied the Union's grievance. Despite prevailing on the grievance, the City filed suit to set aside the award on the basis that the dispute was not subject to arbitration under the cba.

The cba provided for arbitration of disputes arising "out of the provisions of the agreement" and further provided that the contract was the "entire agreement and complete understanding" between the parties, and that the arbitrator had no authority to add to the agreement. While the parties had entered into new cba's ten times since the "stipulated award", the contract had never been modified to incorporate or reference the terms of that award. The Court described the issue to be decided as :

whether a dispute relating to a side agreement stipulated to by the parties in 1993, but never referenced by or physically incorporated into ten subsequent CBAs spanning over seventeen years, is arbitrable under the CBA in effect at the time the Union's grievance arose in 2011

In reaching its decision, the Rhode Island Superior Court in Providence first determined that the stipulated award should be most appropriately characterized as an agreement between the parties, rather than an arbitration award. It noted that the award made no reference to any contractual provision it was purporting to interpret and there had been no hearing on the merits of the underlying grievance. Nor did a subsequent court enforcement of the stipulated award convert it into an arbitration decision.

 The court then proceeded to analyze the substantive arbitrability of side or settlement agreements. After an extensive review of the case law reflecting a split in the circuits , and after noting that the issue appeared to be one of first impression in Rhode Island, the Court determined that the appropriate test was whether the agreement is "collateral" to the cba, i.e if the side agreement is collateral to the cba it is not subject to the cba's arbitration provision.

Applying this test, the Court concluded that the stipulated award was collateral, noting in particular the absence of any reference in the award to the cba, the absence of any revealing title such as "Amendment" of "Addendum" and the absence of any inclusion of the award in any subsequent cba.

The Court observed:

Whatever descriptive term is used to identify the 1993 agreement at issue— "stipulated award," or "side agreement," or "settlement agreement"—the inescapable fact remains that this understanding between the parties remained outside the lines, language, and intent expressed within the four corners of CBAs that were re-negotiated ten times, covering a seventeen-year period. The most accurate description of this agreement is that it was an outlier. There is nothing before the Court to suggest otherwise.

                                                ***

The Court also notes that the contract at issue is a municipal contract involving the capital city of this state and, as such, implicates the public interest as well. It is certainly not in the public interest to permit and enforce negotiated side agreements which are allowed to exist in perpetuity, which are shielded from view or examination, and remain unknown except to those who originally negotiated the settlement agreement, until a dispute arises.

Accordingly, the Court vacated the arbitrator's award.

The Court's decision can be found here.

Labor Arbitration in the News

Retiree benefits commitment survived contract expiration

The Maryland Court of Appeals has upheld an arbitrator's award finding that Baltimore County breached its agreement with the Baltimore County Fraternal Order of Police when it increased the retiree health insurance contribution of retired police officers. The Baltimore Sun reports on the decision. State's High Court sides with Balto. Co. police union. The Court found the arbitrator properly concluded the dispute was arbitrable despite the expiration of the collective bargaining agreement, adopting the vested rights analysis of Nodle Bros. and Litton. The Court also decided that in a case such as this, where a decision on arbitrability of a dispute requires consideration of the merits, the arbitrability decision initially lies with the arbitrator, not the courts. The Court's decision can be found here.

Police Officer eligible to return if he can obtain medical clearance

A Canton, Ohio police officer who had been terminated for his actions during a stop has been found eligible for reinstatement if he is medically cleared to return to work. Arbitrator Harry Graham concluded that while the grievant's conduct was admittedly an overreaction to a perceived threat, he was suffering from PTSD and his conduct was "defensible". CantonRep.com:Fired Canton officer Daniel Harless wins job back. The article links to Arbitrator Graham's award. The officer involved is out on worker's compensation and has applied for a disability pension.

PIP improperly used for discipline

The New York Newspaper Guild prevailed in an arbitration challenging the use of performance improvement plans as a basis for discipline by Thomson Reuters. According to their report, Guild wins challenge to PIP use in discipline at Thomson Reuters, Arbitrator Carol Wittenberg determined that the use of these plans was inconsistent with a contractual commitment that performance management programs were not to be used in connection with discipline of employees. The Arbitrator observed that PIPs were supposed to be a positive tool for providing employees for feedback, not a basis for discipline or discharge of an employee.

Arbitrator challenged for ordering reinstatement to a different bargaining unit

According to a report in the Alton, Ill. Telegraph, a Madison County Circuit Court judge has remanded to the arbitrator a dispute arising from the Arbitrator's decision to reinstate a terminated police officer to a position as a jailer, a position she previously held but which was represented by a different union. Arbitrator must decide fired cop's fate. Arbitrator Steven Briggs had ruled that the officer's termination was not for just cause but apparently felt her effectiveness as a police officer had been compromised. Accordingly he ordered her reinstatement to a previously held City position.

Professor Drummonds on the public policy exception to enforcement of arbitration awards

Professor Henry Drummonds has written an article analyzing the current status of the public policy exception to the enforcement of arbitration awards. He summarizes the article:

This article argues that labor union advocates, management representatives, arbitrators, and reviewing courts and labor boards sometimes misconstrue the public policy exception. Union representatives often interpret the exception too narrowly, effectively denying its existence; conversely, management lawyers often attempt to use this narrow exception to excuse a failure to prove misconduct by, or the incompetence of, the employee. For their part, arbitrators sometimes fail to give the exception proper weight in their consideration of remedies. Although arbitrators properly exercise broad remedial discretion, nothing requires a rote award of reinstatement, as distinct from other forms of relief where a contract violation is found. Arbitrators should consider a variety of other remedies including, in appropriate cases, front pay for a reasonable time in lieu of reinstatement. (footnotes omitted).

The article was triggered in part by the controversy surrounding the arbitration award reinstating Portland police officer Ron Frashour (addressed here, here, and here).

Professor Drummonds discusses the current law in both the private and public sector concerning the public policy exception to enforcement of awards, and distills  "Seven Principles"  from the case law.

The article, The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush, can be found on the Social Science Research Network (SSRN)  here.

Arbitrator orders police officer reinstated

Arbitrator Richard Boulanger has upheld a grievance filed on behalf of a police officer for the Town of Salisbury, Mass. who had been terminated for allegedly studying for the bar exam while on duty and for what the Town claimed was the falsification of his credentials in connection with an Academy application.

The former police chief testified that he had given the officer permission to study while on duty, but grievant maintained he had nevertheless taken vacation and compensatory time to study and had not studied on duty. The arbitrator noted the absence of any "physical evidence" that the officer had used duty time to study, and rejected the Town's reliance on a claimed reduction in productivity prior to the exam. The arbitrator noted that the Town's review of productivity had not factored in the reduction in productivity caused by the vacation and comp time.

The claimed falsification of credentials arose from the former Chief's designation of grievant as "Chief of Detectives", a title not part of the official structure. The arbitrator noted that grievant had questioned the appropriateness of the title, and also raised the issue with the Academy. Nevertheless, Grievant was assured that use of the title was appropriate. Rejecting the Town's justification the Arbitrator observed:

The Town places heavy reliance on the grievant's admission ...that he was not Chief of Detectives, and yet allowed Chief L'Esperance to designate him as Chief of Detectives on his Justification Letter and curriculum vitae.... Implicit in the Town's falsification allegation against the grievant is the notion that the grievant could have and should have stopped Chief L'Esperance from using the Chief of Detectives rank on his curriculum vitae. Based on the Police Department's paramilitary chain of command structure with Chief L'Esperance as the ranking officer, it is not likely that the grievant could have blocked Chief L'Esperance's use of the Chief of Detectives designation.

The arbitrator also rejected a claim that the officer had falsely claimed he had not previously been disciplined, noting that while he had been previously terminated as a Reserve Intermittent Police Officer, that termination had been reversed and no record of discipline existed in his official file.

Arbitrator Boulanger's award can be found here.

Arbitrator finds Boeing improperly limited bargaining unit

The Society of Professional Engineering Employees in Aerospace challenged the actions of Boeing in limiting the extension of its cba to certain employees at its Edwards Air Force Base and Palmdale, California locations. Employees had initially been temporarily assigned to these locations from Seattle, where the Union was recognized as bargaining representative. At a later point these temporary assignments were made permanent and Boeing and the Union entered into an agreement extending recognition for employees "assigned to" these locations. Boeing also acquired the aerospace interests of Rockwell International, and merged with McDonnell Douglas, both of which had operations at these locations.

While initially keeping the operations of the former Rockwell and McDonnell Douglas operation separate, Boeing subsequently integrated these operations with existing Boeing operations in a new organization. While the heritage Rockwell and Boeing employees were grandfathered in their non represented status, a dispute arose concerning the extension of Union recognition to other employees placed in what the Union claimed were bargaining unit positions.

Boeing challenged the Union's efforts to arbitrate the dispute, asserting that the grievance was untimely. Rejecting this argument, Arbitrator Michael Beck concluded that the violation alleged was a continuing one. Arbitrator Beck also rejected Boeing's claim that the demand for arbitration was not timely filed. Noting the numerous discussions between the parties concerning the grievance, an action by the Union to compel arbitration, and the absence of earlier statements by Boeing challenging the timeliness of a demand, the Arbitrator found that Boeing "has waived the right to invoke timeliness as a defense to the Union's demand for arbitration."

Turning to the merits, the Arbitrator concluded that Boeing was collaterally estopped on the unit placement issue by a prior decision of an NLRB Regional Director (here) rejecting a request by Boeing to clarify the bargaining unit to exclude engineers and technicians working at Edwards/Palmdale.

He further ordered Boeing to make whole employees who suffered losses by not being covered by the cba, and to make whole the Union for lost dues.

SPEEA links to the award here.

Arbitrator finds firefighter minimum staffing grievance not subject to arbitration

The contract between the City of Pawtucket, Rhode Island and the Pawtucket Firefighters union called for a minimum staffing level of 30 firefighters on duty at all times. Because of fiscal constraints, the City unilaterally reduced the agreed upon staffing levels "for overtime purposes only"; i.e. it would not utilize overtime to bring the staffing to the contractually called for minimum. It also reduced the deployment of firefighting equipment below the level called for by the contract. The Union grieved these actions and sought to arbitrate the dispute. The City challenged the arbitrability of the grievance, asserting that the deployment of particular numbers of fire apparatus  and level of service decisions involved matters of "inherent management prerogative" and "entrepreneurial control", neither of which is appropriate for collective bargaining. The Union maintained that the City's actions involved mandatory subjects of bargaining and breached the clear and unambiguous language of the collective bargaining agreement.

Arbitrator Marc Greenbaum found the Union's grievance "not substantively arbitrable".  Arbitrator Greenbaum observed:

In what seems like ancient history, the role of the arbitrator was understood to be limited to contractual interpretation. The arbitrator’s expertise was in the "law of the shop", not external law. The previously impermeable barrier between contact and law has, however, been eroded by numerous factors. The increasing regulation of individual employment rights has poked holes in the barrier. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). A similar result has flowed from judicial decisions deeming issues routinely bargained in the private sector, as outside the scope of public sector collective bargaining and arbitration.

While rejecting the City's arguments that the language of the contract could be interpreted as not requiring the City to maintain minimum levels of equipment and personnel, the Arbitrator concluded that "Rhode Island courts would find that the promises contained in Article XVI of the Agreement cannot be enforced in the arbitral forum." Whether called matters of entrepreneurial control, or inherent management prerogative, the Arbitrator noted that Rhode Island courts had limited a public employer's ability to contract away certain discretionary management decisions.

The Arbitrator recognized that the Union and its members may feel cheated "by a result that effectively renders a contract provision that was freely negotiated with the City unenforceable in arbitration,"  but determined that the judicial decisions trump the collective bargaining process.

Ethan Shorey reports on the decision for the Valley Breeze, Arbitrator rules for the city on minimum fire manning and links to the Arbitrator's award.

Teacher Re-Staffing Procedure Subject to Arbitration

The Rhode Island Superior Court has confirmed an award finding that the Providence School Board violated its contract with the Providence Teachers Union when it unilaterally declared that appeals relating to a decision to not invite a teacher back to a transforming school would be limited to "procedural improprieties".

Pursuant to the applicable cba, the Board and the Union were to work collaboratively to implement a Transformation Model for a school designated as "needing improvement" by the Rhode Island Department of Education. The Board and the Union worked together to create a process for teachers wishing to remain at the school. The process called for an initial interview with the principal. If the principal decided not to retain the teacher the teacher would be sent to an interview with a Recommendation Review Team. A teacher not invited back after a RRT interview could appeal that decision to a School Improvement Intervention Team. co-chaired by the Superintendent and the Union President. It was this final appeals process that the Board declared was limited to procedural irregularities.

In response to the Union's grievance, the arbitrator found the grievance arbitrable and the unilateral imposition of the limitation on the appeals process violative of the contract.
The Board sought to set aside this award, arguing that the dispute was not arbitrable in that it involved a "non-delegable duty" closely related to the school's educational mission.
The Superior Court rejected this argument and confirmed the award. It noted:

   the relationship between a decision about the level of process to be afforded a teacher who has not been invited back by a principal and then the RRT in his or her appeal to the SIIT is too remotely related to the essence of the educational mission to be considered a non-delegable duty and thus not arbitrable. ... If this Court were to find the Board's decision to be pursuant to a non-delegable duty, despite its remote relationship with the essence of the educational mission, then it follows that the entire procedure for evaluating teachers at a persistently-lowest achieving school could potentially be considered non-delegable. There would be no encouragement for the Board and the Union to work collaboratively, as they have largely done in this case, to implement the RIDE intervention protocols and provide a method for reforming our state's most needy schools.
 
The court's decision can be found here.

Arbitrator finds DC Fire Chief retaliated against Union President

Arbitrator (and former NLRB Administrative Law Judge) Leonard Wagman  has upheld a grievance filed by the International Association of Firefighters, Local 36. Arbitrator Wagman summarized the dispute:

Local 36 contends that the Department involuntarily transferred Captain Edward Smith from Rescue Squad 1 to Engine 7 because he engaged in union activity, and thereby violated Article 19, Section A, and Article 2, Section A of the CBA. The Union also argues that the Department's failure to comply with Captain Smiths request for the reason for that transfer violated Article 19, Section B(2) of the CBA. The Department seeks denial of the grievance on the ground that Local 36 has failed to show that union activity motivated the decision to transfer the  Grievant and that the Department has satisfied its burden of providing a written reason to Captain Smith for his involuntary transfer to Engine 7. As set forth below, I find merit in Local 36's contentions.

Arbitrator Wagman rejected the Department's defenses, finding its explanations for the disputed transfer "has gone from evasion to shifting reasons for its conduct."

Concluding that the transfer was in fact undertaken in retaliation for the Captain's union activity the Arbitrator ordered the Department to rescind the transfer and to reinstate him to his former position.

Statter911.com links to the award here.

Arbitrator erred in voiding Last Chance Agreement

Associated Electric Cooperative sought to set aside an arbitrator’s award reinstating, with back pay, an employee who had violated a last chance agreement. The grievant had been placed on the LCA on April 18, 2011.  On that date he had been selected for a random drug test. Prior to taking the test, grievant informed management that he had smoked marijuana while on leave from the Company approximately 10 days earlier.  Grievant was then presented with an LCA. He declined union representation and was instructed to attend an EAP counseling session.  Grievant was placed on unpaid leave while attending the counseling and was required to submit to additional drug tests at the EAP office. Grievant’s initial drug test was ultimately determined to be negative, but a subsequent test in the EAP  office  was positive for traces of marijuana and a prescription drug (for which grievant did not have a prescription.)

On June 3d grievant was initially told that that he had been cleared to work, but later the same day he was contacted and advised of a positive result for an unprescribed drug.  On June 13, 2011 grievant was called by the plant manager and advised that his employment was terminated for violation of the LCA.

In the resulting grievance, the arbitrator concluded that the LCA, as applied in this case, was unconscionable. The arbitrator noted that at the time he signed the LCA grievant had broken no rule i.e. he had not smoked marijuana on company property, he did not act impaired at work and he had in fact passed the initial drug test.  Finding the LCA unenforceable, the arbitrator turned to the merits of the dispute and found grievant had been denied due process since he had been given no chance to explain before being terminated by phone, and because no investigation had been conducted.

The District Court in Missouri  granted AEC’s request to set aside the award. The court concluded:

While this Court does not sit in judgment of the arbitrator's factual or legal conclusions,... nor does it pass judgment on the validity of the arbitrator's interpretation of the agreement, as noted in Enterprise Wheel at 597, "an arbitrator is confined to interpretation and application of the [LCA]; he does not sit to dispense his own brand of industrial justice . . . . [H]is award is legitimate only so long as it draws its essense from the [LCA]." The record reflects that [Grievant] freely confessed to taking prescription drugs for which he had no prescription, an act proscribed by the LCA. [Grievant] expressly declined union representation. There is no evidence that [Grievant] was pressured or forced to sign the LCA. The employer is entitled to enforce a zero tolerance, drug free workplace, and the arbitrator cited to no authority supporting his conclusion that the employer was not entitled to rely on the terms of the LCA. Where the language of the [LCA] is clear, and unambiguous, and the parties agreed to it, they are bound by it.

The court's decision can be found here.

Update: The Eighth Circuit has reversed the District Court's decision. The Court's opinion is discussed here.

Labor Arbitration in the News-Teachers

Arbitrator Sarah Kerr Garraty has upheld a grievance filed on behalf of a teacher accused of slapping a student on the hand. bangordailynews.com:Arbitrator overturns RSU 67 suspension of second grade teacher. The arbitrator found the school board failed to establish that the manner in which the grievant touched the student's hand amounted to "a very serious breach of [her] responsibilities" as the school board had alleged. The arbitrator also found unsupported a claim that the grievant had threatened a student when she said, in a joking manner according to her, "If you kick me again I'll cut off your leg and hit you over the head with it."  The award is available here.

The Spokane, Washington Spokesman-Review reports on an award denying the grievance of a teacher who had been terminated after admitting having sex with a former student in his classroom. The incident took place on Memorial Day weekend when the school was closed. Fired teacher loses arbitration. According to the report, the arbitrator concluded that restoring grievant to his teaching position could harm the reputation of the school district.

Arbitrator Lawrence Little has modified the discipline imposed on a Libby, Montana high school teacher who had been terminated for allegedly sharing prescription drugs with another individual at a bar. Grievant had a prescription for oxycontin and allegedly shared pills with a police informant. Curtiss wins arbitration; may soon return. According to the report, the arbitrator concluded some discipline was warranted, but the school board failed to establish that termination was appropriate.

Jeffrey Zaino of the American Arbitration Association has authored an article in The Chief discussing the controversy over the teacher arbitration program established by the New York City Department of Education and the United Federation of Teachers. Why Labor Arbitration Works, Despite Critics

Third Circuit affirms Rite Aid card check arbitration

In November of 1999, Rite Aid and UFCW Local 1360 entered into a cba that contained a provision that Rite Aid would recognize the Union as exclusive representative of employees in its stores in the Union's geographic jurisdiction when majority status was demonstrated by an NLRB election "or other demonstration of the Union status" acceptable to Rite Aid. CBA's executed in 2002 and 2005 contained essentially the same language.

Before entering into the 1999 agreement, the parties also entered into an oral agreement providing that Rite Aid would recognize the Union without the need for an NLRB election when the Union could present authorization cards from a majority of  a store's employees. Pursuant to this agreement the Union was recognized  based on a card check in 63 New Jersey stores.

In 2003, Rite Aid replaced its Director of Labor Relations and between 2003 and 2005 it refused to recognize the Union in five New Jersey stores based on card checks.

The Union grieved this refusal and the dispute ultimately went to arbitration. The arbitrator concluded that Rite Aid had violated the card check agreement. While noting that the language of the cba, standing alone, might support the Company's actions, the arbitrator found that the parties had "amended and modified" the agreement by their oral card check agreement. The arbitrator further noted that Rite Aid received a direct benefit from the card check agreement, including an ability to become a participating provider for the union benefit fund.

Rite Aid sought to set aside the award , but the District Court rejected this effort.
Affirming the lower court, the Third Circuit concluded:

Despite Rite Aid's arguments to the contrary, there is sufficient evidence in the record from which the arbitrator's interpretation could "in any rational way be derived from" the CBAs. Brentwood Med. Assocs., 396 F.3d at 241 (emphasis in original). At least three pieces of evidence support the arbitrator's conclusion that Rite Aid agreed to accept the card check process in return for provider status under the Fund.

First, Rite Aid accepted card checks for the unionization of approximately sixty-three Rite Aid stores from November 1999 to December 2002. ...

Second, Rite Aid continued to enjoy the economic benefit of its agreement to accept card checks when it signed the 2002 and 2005 CBAs because it continued to be a participating pharmacy services provider for the Fund. ...

Third, the record can be read to reject the premise that when Rite Aid executed the Card Check Agreement and distributed the 1999 memorandum to its non-union employees it only intended for the agreement to govern the parties' collective bargaining arrangements until the expiration of the 1999 CBA. during the pendency of the 1999 CBA. ^...

Thus, we are satisfied that the arbitrator's award "draws its essence" from the CBAs, viewed in the context of both the Card Check Agreement and the parties' course of dealing, and we are without jurisdiction to consider the award further. ...

The court's decision can be found here.

Labor Arbitration in the News

Arbitrator Michael Falvo has rejected a grievance filed by the Illinois Police Benevolent and Protective Association Labor Committee claiming the City violated its cba in its assignment of involuntary overtime to police officers. The parties cba limited mandatory overtime assignments to "emergency conditions ...or to perform essential functions ... which cannot be deferred." The arbitrator concluded that dui enforcement and holiday seat belt enforcement fell within this language. The Alton Telegraph has a report on the decision.  Arbitrator backs city in police OT case.

Arbitrator William Richard has sustained in most part a grievance filed by a Broward County Sheriff's Office lieutenant who had been fired for allegedly visiting adult websites and downloading sexually explicit materials on County computers. The Arbitrator ordered the reinstatement of the
grievant with back pay except for a one week suspension for an unrelated issue. Sun Sentinel: Fired BSO lieutenant must be reinstated, arbitrator rules.

Arbitrator Richard Boulanger has upheld the decision of the town of Tisbury, Mass. terminating the employment of a police sergeant for violating policy by allegedly leaving a teenage babysitter alone with the minors she was babysitting while an individual who had  sexually assaulted her and physically assaulted his wife was the subject of a police search. The individual returned to the home and raped the babysitter while the search was underway. mvtimes: Arbitrator rules Tisbury was justified in firing Sgt. Fiske

Arbitrator Bruce McIntosh rejected a grievance filed on behalf of a Newark, Ohio police officer terminated for allegedly threatening a FedEx driver who refused to return to deliver an iPhone. The arbitrator rejected the Union's claim that the City had improperly applied progressive discipline in terminating the officer. Newark Advocate: Ex-officer Hartless will not return to Newark police force.

Ambiguous contract and past practice defeat teachers' claim

The N.J. Appellate Division has rejected an attempt by the Education Association of Mt.  Olive to overturn an arbitrator's award. 

The contract between the union and the Board of Education provided that "a work year for teachers shall include 1 opening day, 180 student days, and two full in-service days." The contract also provided that the last two scheduled student days of school would be shortened days. The language of the contract had remained unchanged for an indeterminate number of years, and during that time teachers had consistently worked full days on the last two scheduled student days.

When the Board issued the calendar for the 2010-2011 school year the Association filed a grievance challenging the calendar because it showed the last two scheduled days would be shortened days for students only. 

The grievance was ultimately submitted to arbitration, and the arbitrator deemed the relevant language of the contract ambiguous. Turning  to past practice he found that the last two scheduled days had consistently been shortened for students only and, as a result, denied the grievance. 

The Education Association sought to overturn the award, arguing that the relevant language was not reasonably debatable and the arbitrator should therefore not have considered past practice. The trial court rejected these claims, and the Appellate Division has now affirmed. Education Association of Mt. Olive v. Mt. Olive Board of Education.  The court concluded:

A careful review of the record supports the conclusion that the Agreement is ambiguous, as the arbitrator determined. The Agreement mentions shortened days at the end of the school year, but does not indicate that they are shortened days for students only. Thus, the arbitrator properly considered the parties' past experience, which indicated that teachers had worked full days on the last two days of the school year, even though the students had shortened days. Based on this past practice, the arbitrator reached a reasonably debatable interpretation of the relevant section of the contract. Accordingly, the trial court correctly refused to set aside the award.

Arbitrator can't order company to create Zero Tolerance policy

So ruled the magistrate in United Food & Commercial Workers, Local 7 v. King Soopers, Inc. (D. Colorado).

A bargaining unit employee had filed a grievance claiming that a customer created a hostile work environment and that King Soopers failed to provide him with a "hostile-free" workplace. On June 3, 2011, the arbitrator issued an award, finding that the grievance was arbitrable and that King Soopers had not fulfilled its duty to provide a "hostile-free" environment. He ordered the Company to take "all steps necessary" to provide a hostile free work environment, including "the creation of a zero-tolerance policy for violence...." King Soopers did not comply with the award and on September 27, 2011, the Union filed suit seeking to confirm and enforce the award.

The Court  ruled initially that King Soopers' defenses to enforcement were barred by its failure to seek to set aside the award within the applicable statute of limitations (ninety days in Colorado). Nevertheless, in ruling on the Union's motion to confirm the award, the Court concluded that the arbitrator had exceeded his authority and that the award did not draw its essence from the parties' contract. The cba limited the arbitrator's authority to arbitrating disputes arising over the interpretation or application of the agreement. Finding no cba provision relating to a duty to provide a work environment free of customer hostility, the Court determined the arbitrator based his decision on "federal and state laws, internet articles, prior arbitration decisions, and other materials unrelated to the CBA."

The Court also found the award contrary to the contract's explicit recognition that  the "Employer retains the right to manage the store ... and to make reasonably necessary rules and regulations ... not in conflict with the terms of this Agreement ...."

Rejecting the Union's request to confirm the award, the Court concluded:

Here, the arbitrator effectively altered the terms of Article 5, Section 14 when he ordered King Soopers to establish a "zero-tolerance policy for violence" and to exclude [the customer] from the store "until the parties are satisfied with his behavior." Those are matters reserved to King Soopers under Article 5, Section 14.

***

The arbitrator's decision is not related to a dispute or complaint over the interpretation or application of the CBA, and his award does not draw its essence from the CBA.

UPDATE: The Tenth Circuit reversed the District Court and ordered the arbitrator's award confirmed. Employer's failure to timely seek to set aside arbitrator's award precludes defense to Union's action to confirm



 

Statute of limitations, advisory opinion, past practice, contempt

The Massachusetts District Court addressed all of these topics in deciding cross motions to set aside and confirm an arbitrator's award. Western Massachusetts Electric Co. v. IBEW Local 455  The dispute arose when Western Massachusetts Electric sought to send electricians to Connecticut to assist a sister company in repairing storm damage. After its initial attempt to solicit volunteers proved unsuccessful, WME announced that it would assign employees to travel. Ultimately, however, enough employees volunteered and involuntary assignments proved unnecessary. The union nevertheless sought to arbitrate its claim that the Company was without authority to assign employees out of state without the Union's consent.

At the arbitration hearing the Union presented evidence it claimed showed that WME violated past practice by announcing that it would force employees to work in Connecticut. In contrast, WME maintained that it had previously sent employees to Connecticut for training, to pick up parts, and for recertifications. It also relied on its contractual right to assign the work force. Additionally it argued that the case was moot since no one was actually forced to go, and claimed that the Union was improperly seeking an advisory opinion. The arbitrator agreed with the Union, finding that the case was not moot since the dispute could readily recur and there remained a live dispute. In addition, relying on an earlier arbitration between the parties that found that past practices became equivalent to a written term of the contract, he found the evidence supported the Union's grievance. Because no one was harmed, however, he awarded no monetary remedy. WME filed suit to set aside the award, and in response the Union sought to confirm it.

The District Court first granted the Union's motion to dismiss WME's action as being barred by the applicable statute of limitations. WME had filed its complaint eighty nine days after receipt of the arbitrator's award. Rejecting WME's claim that the applicable limitations period was the ninety day period of the Federal Arbitration Act, the Court instead found that the applicable period in Massachusetts was the thirty days, borrowing the period from Massachusetts law. Accordingly, the court  dismissed WME's action to set aside the award, but then turned to the Union's motion to confirm.

The Court agreed with the arbitrator that the case was not moot, noting that the arbitrator applied essentially the same standard as would a court. The court also found the arbitrator plausibly determined that there was no past practice of unilaterally assigning employees out of state. Finding that the arbitrator's decision was within the scope of the cba the Court agreed that the award should be confirmed.

It rejected, however, the Union's contention  that any future violations would be subject to the court's contempt power, noting instead that in any future cases an arbitrator must determine the weight to be afforded to the earlier award.

Labor Arbitration in the News

According to a report in Newsday, Arbitrator Mark Grossman has determined that Suffolk County’s Association on Municipal Employees timely filed a grievance concerning the replacement of county security guards with employees of a private firm. Union challenge to guard firings can stand.

 

Fedsmill reports on a decision of the FLRA modifying an arbitrator’s award which had ordered the agency to provide the grievant with the next overtime opportunity rather than paying back pay for the lost opportunity. Important OT Backpay Precedent.

 

A New York Supreme Court judge has confirmed an arbitrators award that Sullivan County violated its contract with Laborer’s International Local 17 when it eliminated bargaining unit positions and transferred the duties of one of those positions to a different bargaining unit. recordonline: Sullivan violated union contract, judge decides.
 

A Tulsa Oklahoma police captain was properly suspended for “conduct unbecoming” for his actions in connection with his refusal to attend, for religious reasons, a “Law Enforcement Appreciation Day” at the Islamic Society of Tulsa. While arbitrator Fred Blackard found a one week suspension for failing to follow an order unsupported by the evidence, he concluded the officer failed to properly raise his concerns up the chain of command. Arbitrator splits decision on Tulsa police captain's punishment.

The Kiona-Benton City, Washington School District has been found to have breached its contract with the teacher's union  in two recent awards. In the first, the arbitrator found that the School District must pay two teachers for requiring them to work hours outside their contracts, TriCity Herald: Ki-Be school board must pay 2 teachers for forcing them to work extra hours   and in the second the arbitrator ordered the District to reimburse teachers for contributions to a health care insurance pool. Ki-Be School District must pay insurance costs, arbitrator rules

Preclusive effect of prior award

The U.S. District Court for the Northern District of Ohio has vacated an arbitrator's award for failing to give preclusive effect to an earlier award, and because it conflicted with the contract. Teamsters Local Union No. 436 v. The J.M. Smucker Company.
The earlier award arose from the reorganization of Smucker's facility. Smucker discontinued employee Pennie Graham's position and issued her a bump slip, enabling her to displace a less senior employee. Graham sought to displace a team leader, but Smucker refused to allow that bump, arguing that the contract allowed it discretion in hiring individuals for that position. Graham grieved this action, and Arbitrator Robert Vana found that Smucker had violated the contract and allowed Graham to bump into the team leader position. The Company, however, did not issue a bump slip to the incumbent in that position, employee Dave Rose. Rose grieved this denial and the matter was submitted to Arbitrator John J. Murphy. As summarized by the Court:

Analyzing Pennie Graham's bump, Arbitrator Murphy found that though she had prevailed before Arbitrator Vana, Graham had never in fact established that her job had been eliminated. Smucker had merely been estopped in that proceeding from arguing the point because it had issued her a bump slip and effectively conceded the issue. Considering Graham's reassignment anew, Arbitrator Murphy ruled that Graham's job had not in fact been eliminated, as there had been no layoffs and no workforce reduction at the plant. Rose's job, Arbitrator Murphy concluded, was unaffected by layoffs or job eliminations and Rose therefore had no right to a "sequential" bump. ... The Arbitrator's analysis relied on the CBA provision limiting bumping rights to circumstances where an employee's position has been eliminated.

The Union filed this action seeking to set aside Arbitrator Murphy's award. In granting the Union's request, the Court noted that ordinarily the preclusive effect of an earlier award is for the arbitrator to decide. Here, however, the cba provided that arbitration awards were "final and binding on the parties and all effected [sic] employees", and since Rose was an "effected" employee, Arbitrator Murphy's award conflicted with the express terms of the contract. The Court also determined that Arbitrator Murphy failed to consider the past practice of the parties and as a result his decision was without support in the cba.

Accordingly the Union's motion for summary judgment was granted.

Portland ordered to comply with reinstatement award

The Oregon Employment Relations Board (ERB) has ordered the City of Portland to comply with the award of Arbitrator Jane Wilkenson that found the City lacked just cause in terminating police officer Ronald Frashour.  Frashour had been dismissed for alleged excessive use of force in connection with the fatal shooting of a citizen. Arbitrator Wilkinson, in an award discussed here, concluded that Frashour had a reasonable belief that the citizen was attempting to retrieve a gun to shoot at others. The arbitrator concluded that the City had failed to establish a violation of its policies concerning use of force and ordered him reinstated with back pay. Disagreeing with the arbitrator’s decision, the City’s mayor announced that he would not implement the award. The Portland Police Association pursued the matter before the ERB, alleging a violation of applicable law. The Oregon statute makes it an unfair labor practice for a public employer “to violate the provisions of any written contract …or to [refuse to] accept the terms of an arbitration award…” There is an exception, however, for an award that “orders the reinstatement of a public employee or otherwise relieves the public employee of responsibility for misconduct” unless the award complies “with public policy requirements as clearly defined in statutes or judicial decisions including but not limited to policies respecting sexual harassment or sexual misconduct, unjustified and egregious use of physical or deadly force and serious criminal misconduct related to work.”

The City maintained that the reinstatement of Officer Frashour fell within this exception and that his reinstatement would violate public policy.  Rejecting this contention, the ERB found that once the arbitrator found that the officer had not engaged in misconduct there was no basis for a claim that the officer had been “relieved” of misconduct.

The ERB concluded:

          We have been told by the courts not to engage in a right-wrong analysis, but rather to ensure that the parties got what they bargained for- a binding decision by an arbitrator. … Although our deference to an arbitrator’s award is not unlimited, until such time as an award violates public policy as outlined in ORS 243.706(1), we are bound to uphold the award.

          In this case, the arbitrator determined that Frashour did not violate the City’s policies, and therefore did not engage in misconduct. The City does not have a lawful reason for refusing to implement the award.

  

The ERB’s decision can be found here. The City is considering an appeal of the ERB’s order. Oregon Live: Portland commissioners Fritz and Fish join Mayor Adams, commissioner Leonard in appeal of Frashour reinstatement.

Reinstatement with Conditions - Last Chance Awards

Arbitrator Thomas Gallagher has issued an award in a dispute between the Teamsters and Associated Milk Producers. The case involved the termination of an employee for excessive absenteeism. While finding that the employee's record of poor attendance would ordinarily be sufficient  to justify his termination, the Arbitrator concluded that the employee's long service and his difficulty adjusting to a change from night shift to day shift merited a reduction in the discipline. Accordingly he ordered the grievant reinstated, but imposed certain conditions on that reinstatement:

   If the grievant fails to attend in accord with the conditions stated in the award, his reinstatement will end without the opportunity to grieve just cause issues. By force of this award, the parties will not be required to re-litigate just cause issues if grievant does not abide by the conditions of his reinstatement.
.
 The award provided that grievant's reinstatement would end if he exceeded a listed number of tardies/lateness in the two years following his reinstatement. During the third year after his reinstatement the conditional nature of the reinstatement will end and grievant "will be subject to the same progressive-discipline standard the Employer follows for other employees..."

While reinstatement with conditions is not uncommon, especially in attendance cases or cases involving substance abuse, Arbitrator Anthony Sinicropi, in a presentation to the National Academy of Arbitrators in 1981, entered a note of caution:

It is important to stress that a conditional reinstatement may, in the abstract, be a suitable way of dealing with an industrial problem. In the final analysis, however, the parties must implement the award and, in the process, it is not uncommon that the conditions imposed by the arbitrator will cause another round of litigation in the arbitral forum, which in turn, may create continued antagonism between the parties. The arbitrator, rather than acting as the parties' contract reader, instead becomes a "legislator" and an important and sometimes unwanted fixture in the grievance process.

Negotiated last chance agreements have also, on occasion, generated their own disputes. Arbitrator Donald Ryce sets forth some of those issues in  Arbitrating A Last Chance Agreement (LCA).

Labor Arbitration in the Courts

General non-discrimination clause does not waive litigation rights, Pyett inapplicable

In Ibarra v. United Parcel Service the Fifth Circuit has held that a general non-discrimination provision in a collective bargaining agreement coupled with a grievance procedure that does not expressly apply to statutory claims is insufficient to waive an employee's right to a judicial forum for claimed violations of Title VII. According to the Court, the Supreme Court's decision in 14 Penn Plaza v. Pyett requires more than "broad but not specific language" to meet the clear and unmistakable waiver standard of Pyett.

Arbitrator's award that employee "retain seniority" does not require retirement service credit

An arbitrator found an employee had been disciplined for just cause but that termination was too severe. He ordered the employee reinstated but provided:"he is to retain his seniority, but to receive no back pay or benefits for the period he has been out of work..." The parties subsequently disagreed concerning the meaning of this phrase and the matter was ultimately presented to the Michigan courts. Reversing the lower court, the  Michigan Court of Appeals determined that the award did not require that the grievant be awarded retirement service credit for the time he was off work. Because grievant did not lose the seniority he had prior to his termination there was no failure to comply with  the award.  Michigan State Employees Association v. Department of Natural Resources.

Arbitrator must consider threshold factual issues to determine arbitrability

The contract between the Teamsters and Roundy's Supermarkets contained a provision that "the Employer may immediately discharge any Union members participating in any unauthorized strike, slowdown ...or other cessation of work, and such Union members shall not be entitled to, or have any recourse to, any other provision of the Agreement." Grievant was required to work overtime on a day he had planned to be off. His production level decreased, and Roundy's concluded that the reduction was  intentional, in protest of the overtime assignment. As a result they terminated his employment.The Teamsters disagreed with the conclusion that the decline in productivity was intentional, and sought to arbitrate that issue. Roundy's refused, and the matter ended up before the District Court in the Eastern District of Wisconsin. The District Court, analogizing the situation to a termination under a last chance agreement, concluded that the factual issue of whether grievant had engaged in an intentional slowdown had to be arbitrated.  If the arbitrator concludes that the precondition was met,however, grievant and the Union would have no further recourse under the contract. The Court found nothing in the contract that gave Roundy's the unilateral right to make the determination of the threshold factual issue. Teamsters "General" Local Union No. 200 v. Roundy's Supermarkets, Inc..

Reinstatement of grievant  who allegedly made racist comments upheld

Mesa Airlines sought to overturn an arbitrator's award reinstating a pilot, (who was also a union negotiator), who had been terminated after sending an allegedly racist email to several other ALPA members. Arbitrator Stanley Sergent  reversed the termination, concluding that the letter failed to rise to the level of harassment or threatening behavior as alleged in the letter of termination. Mesa claimed that the award violated public policy because it condoned racial harassment, that the System Board exceeded its authority by ignoring language of the cba and instead applying its own brand of industrial justice, and that the arbitrator exhibited bias by ignoring a piece of evidence. The District Court in Arizona reject all of these claims and confirmed the award. The court concluded "The Arbitrator did not exceed his jurisdiction by applying the workplace nexus standard or the progressive discipline standard because the CBA does not expressly mention either common industrial concept." Nor did the arbitrator ignore any relevant language in Mesa's anti-discrimination policy. Similarly, the failure of the arbitrator to comment on an email attached to Mesa's brief was insufficient to demonstrate bias. Finally, "Because no law prohibits reinstatement of an employee who makes offensive and racist statements that nonetheless do not constitute workplace harassment, " the court found no violation of public policy. Mesa Airlines, Inc. v. Air Line Pilots Association International.

Applicability of Neutrality Agreement not subject to arbitration

The Tenth Circuit has reversed a district court decision that had required Avaya to arbitrate a dispute concerning the scope of its Neutrality agreement and its application to certain management employees. Communications Workers of America v. Avaya, Inc. The district court's opinion is discussed here.

Avaya and CWA were parties to a Neutrality Agreement governing the process by which the Union could organize non management employees. Pursuant to that Agreement, CWA gave notice of its intent to organize certain "backbone engineers", a position categorized by Avaya as management. Avaya maintained that the Neutrality Agreement by its terms applied only to non management employees and asserted that the only process by which these employees could be organized was through the NLRB. CWA asserted its belief that the backbone engineers were properly considered non management employees and sought to submit this issue to the dispute resolution process (a "Third Party Neutral") of the Neutrality Agreement. After Avaya refused to submit the dispute to the TPN the Union the filed a grievance under its cba, seeking a determination that the TPN should resolve the status of the backbone engineers. Avaya similarly refused to arbitrate this dispute and CWA filed suit seeking an order compelling arbitration. The District Court granted the Union's request and Avaya appealed.

 Reversing the district court, the Tenth Circuit noted:

This case requires reconciling two competing principles governing judicial review in this area. First, courts (rather than arbitrators) must evaluate the threshold question of whether the parties consented to submit a particular dispute to arbitration. ... Second, courts making this determination are not to rule on the potential merits of the underlying claims... These rules clash in cases where the merits of the claim are bound up with the question of arbitrability. ... On those occasions, the Supreme Court tells us, the court's duty to determine whether the party intended the dispute to be arbitrable trumps its duty to avoid reaching the merits

Reviewing the matter de novo, the Circuit found "compelling evidence" that the parties did not agree to submit the dispute over backbone engineers to arbitration. The court determined that the Neutrality Agreement provides for a process for resolving disputes from organizing drives directed at "non-management" employees, and the evidence was clear that this referred to individuals categorized by Avaya as "occupational" employees. Despite the Union's "belief" that the backbone engineers were non-management, the evidence was undisputed that they had been consistently categorized as management by Avaya, were covered by the management pension plan, and the Union had referred to them as management in several grievances concerning the claimed improper assignment of work. The court concluded that "the parties understood the term 'management' to denote non-occupational employees; and if there is no real dispute about the classification of backbone engineers as non-occupational; there can be only one conclusion to draw from the record: the parties did not consent to submit the underlying dispute to arbitration."

According to the court "In the end, the district court had its presumptions backwards: instead of applying the presumption in favor of arbitration, it should have applied the presumption in favor of judicial resolution."

Labor Arbitration in the News

Arbitrator considers discipline in stun gun cases

Arbitrator Walt De Treux has upheld the termination of a West Reading, Pa. police officer who was accused of using a department issued stun gun on other officers, borough employees, and his father "at parties, borough hall and at home." Two other officers, also terminated for offenses involving the use of stun guns inappropriately,  had terminations converted to 120 day suspensions. Reading Eagle: 2 West Reading officers fired in stun gun scandal to get jobs back.

City to appeal award of back pay for time police officer was in jail

The City of Arlington , Texas is seeking to set aside an award of Arbitrator Frederick Ahrens reinstating with back pay a police officer who had been terminated after his arrest on domestic violence and sexual assault charges in January of 2011. He was released from jail in March of 2011. A Grand Jury declined to indict the officer and the Arbitrator, according to a report in the Star-Telegram, doubted the girlfriend's credibility. The Arbitrator did find the officer had erred in a different incident, but concluded that offense warranted a twenty day suspension. The City asserts that the Arbitrator exceeded his authority by considering evidence not available at the time of the termination, and in any case, does not want to pay for the three months the officer was in jail. Lawyer says Arlington 'broke own rules' by appealing arbitrator's decision on reinstated officer.

Termination of police officer upheld

The Austin American-Statesman reports that an arbitrator has upheld the termination of a police officer dismissed for alleged acts of dishonesty and insubordination. The officer was accused of failing to follow an order to arrest a man for drunken driving or public intoxication after the individual was involved in a traffic accident.Police officer's firing upheld.

City owes firefighters back pay for temporary promotions

Masslive.com reports on an arbitrator's decision requiring the City of Springfield, Mass. to pay firefighters appointed temporarily to a higher rank the base salary of the higher rank rather than the stipend called for for acting assignments. Arbitration rules in favor of Springfield firefighters union; fire department owes $76K in back pay.

Past practice supports Police Department, grievance denied

The City of Red Wing and Teamsters Local 320 are parties to an agreement covering a unit of peace officers. That contract provides that "All callbacks on an officer's off-duty time shall be compensated at the overtime rate of time and one-half ...with a minimum of two (2) hours." On December 3, 2011 three officers were summoned to report prior to the start of their scheduled shift. The officers worked for less than two hours before the start of their scheduled shift and were paid overtime for only the hours actually worked. The union file a grievance, claiming they were eligible for the two hour minimum provided for in the contract. The Department denied the grievance, asserting that overtime contiguous with an employee's regular shift was a shift extension, not a "call back." The parties were unable to resolve the dispute and it was ultimately submitted to arbitration before Arbitrator Stephen Befort.
The Union maintained that the  language of the contract was clear and unambiguous and supported the officer's eligibility for the two hour minimum regardless of whether the unscheduled time was contiguous with a regularly scheduled shift. According to the Union, it would be inappropriate to consider evidence of past practice in light of the clear language of the contract. In contract, the City argued that the language was ambiguous and the past practice supported its interpretation of the contract.
Noting that the contract contained no definition of a "callback", Arbitrator Befort found the language ambiguous. Turning to the City's past practice evidence the Arbitrator found "a virtually unbroken record" of employees not receiving call back pay for shift extensions. Denying the grievance the Arbitrator concluded:

In the end, the Employer has produced evidence establishing a viable past practice claim. The Employer has shown that it has consistently limited call-back pay to situations that did not involve a contiguous shift extension. This practice is longstanding in that it has continued for at least the past 30 years. The practice also has been mutually acceptable since the testimony shows that Union representatives knew of the practice and did not object. Given this clear past practice, the Employer’s continuation of that practice so as to deny callback pay to the grievants is reasonable and does not offend the parties’ collective bargaining agreement.

The full text of Arbitrator Beldon's award can be found here.

Labor Arbitration in the Courts

Arbitrator did not exceed his authority in reinstating employee

Chevron Oronite sought to set aside an arbitrator’s award converting a termination to a suspension and reinstating the grievant. Grievant had been dismissed for a claimed safety violation. Although finding the rule allegedly violated a reasonable one, and finding proper notice and investigation of the incident, the arbitrator concluded “[Grievant] put himself and others in serious jeopardy. It was either luck or Providence that no one was killed or injured. The Company came down hard on [Grievant]. But, too hard it seems to me. A month off without pay with stipulations once he returned would be more reasonable.” The Company claimed the arbitrator’s award did not draw its essence from the cba.

The District Court rejected this argument, concluding that the contract language addressing safety and health and the employer’s right to establish and enforce safety rules provided a basis for the arbitrator’s award. The court noted that “Although the CBA sets forth the ‘Arbitration Procedure’to be used when a grievance cannot be resolved … no provision of the CBA either defines ‘just cause’ or limits the arbitrator’s authority to review or modify the penalty imposed on an employee. The significance of the absence of such provisions cannot be overstated. Nothing in the CBA mandates termination for violation of a safety rule. … Therefore, the arbitrator’s remedy of a sanction less than discharge for a safety violation can reasonably be construed as drawing its essence from the CBA.” Chevron Oronite Company v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied-Industrial and Service Workers International Union, Local 13-447 (E.D. La.)

Union can arbitrate claim arising from evergreen clause

The contract between IATSE and In Sync Show Productions was effective for an initial term of five years (from January 1, 2003 to December 31, 2007) and “from year to year thereafter.” On October 2, 2007 IATSE notified In Sync it wished to modify or amend the contract, and In Sync responded that it wished to terminate the agreement. Negotiations were unsuccessful, and thereafter the Union sought to arbitrate its claim that the original agreement continued in effect pursuant to the evergreen provision and that In Sync had been in continuous breach by failing to adhere to that agreement.

In Sync maintained that the contract had expired and the court was therefore without jurisdiction to compel arbitration, while IATSE sought to rely on the evergreen provision and sought to have an arbitrator rule on the continued enforceability of the agreement and the claimed breach. In granting the Union’s motion to compel arbitration the court held “The Court does not determine that In Sync’s argument is necessarily wrong; the Court simply does not reach the merits of the argument. Rather, the Court decides that because In Sync’s argument requires interpretation of the 03-07 CBA and a determination of whether it was cancelled, the argument is better left for an arbitrator to decide…”IATSE v. In Sync Show Productions, Inc (D. Nevada)

Arbitrator orders effects bargaining for prison closure; Judge issues TRO

According to AFSCME Council 31, a judge has issued a temporary restraining order preventing the State of Illinois from closing certain state prisons. This decision follows an arbitrator’s ruling that the State had violated its cba by failing to properly bargain with the Union over the impact of the closings. The arbitrator ordered the parties to engage in negotiations for a period of 30 days. Judge issues TRO: No prison closures