Maryland Recognizes Labor Relations Privilege by Statute

Adjunct Law Prof reports on new legislation in Maryland recognizing a privilege for communication between a union and an employee received in confidence when the union is acting in a representative capacity concerning an employee's grievance. Maryland Joins in Recognizing a Labor Relations Privilege.  As noted in his blog, Mitchel Rubinstein has written extensively on this issue. Labor Relations Counsel also has a discussion of the new law here.

The same issue is currently pending before the Supreme Court of Alaska. Is there a privilege for union member/union rep discussions?

Update: The Alaska Supreme Court has recognized a labor relations privilege. The court's decision is available here.

Labor Arbitration in the courts

Union waived challenge to arbitrability

In AFSCME Council 93 v. School Department of Burlington, the Massachusetts Supreme Judicial Court reversed a lower court decision setting aside an arbitrator's award. The arbitrator issued an award in favor of the School Department. The union challenged the award but the superior court confirmed the award. On the Union’s appeal the appellate court reversed and found that the arbitrator had exceeded her authority in finding that the grievant was a civil service employee and therefore not subject to the grievance and arbitration clause of the cba. The Department appealed and the SJC reversed, finding that the issue of arbitrability had been raised before the arbitrator and the union had not challenged the arbitrator’s authority to make a determination of that issue until its appeal to the superior court. Accordingly the court concluded that “Where there was no objection, we think the arbitrator did nothing wrong by deciding the issue”.

Arbitrators could not be compelled to appear for depositions

In Administrative District Council 1 of Illinois Union of Bricklayers v. Masonry Co., Administrative District Council 1 of Illinois Union of Bricklayers v. Masonry Co., the U.S. District Court for the Northern District of Illinois quashed subpoenas for deposition issued to two arbitrators. After a decision in favor of the union on a wage dispute the union sought to compel compliance with the award and Masonry Company sought to vacate the decision. Masonry asserted that two members of the Joint Arbitration Board were not impartial and sought to require them to sit for depositions on that issue. In quashing the subpoenas the court noted that while there was not a blanket prohibition against deposing arbitrators where they posses directly relevant and probative evidence concerning the issue on which the challenge is based, such discovery is inappropriate where the testimony to be elicited goes to the correctness of the decision. In order for a losing party to compel an arbitrator to submit to discovery concerning his partiality, the losing party must offer “factual allegations” as to that claimed partially. “The mere fact that that there are circumstances that suggest the possibility that an arbitrator might have been partial to the prevailing party, or that there is an allegation of an appearance of such partiality, is not sufficient to meet the threshold burden”. Finding no such specific factual allegations in this case, the court quashed the subpoenas.

Arbitrator denied losing party due process by deciding on a basis neither party had raised

In Township of Montclair v. Montclair PBA Local No. 53, the NJ Appellate Division remanded a dispute to the arbitrator with instructions to confer with the parties about the need to present additional evidence and allow the parties to present evidence on the issue identified by the arbitrator in his award.

The underlying grievance involved a claim that the police department had violated the parties’ agreement by changing a claimed practice of calling in officers on overtime when minimum staffing levels were not reached. Instead, the department began assigning supervisors to patrol duties. The union relied on contract language which sought to preserve existing practices, while the department relied on a management rights clause authorizing it to make rules of procedure and to “promote, transfer, assign and reassign employees” and to establish and change work schedules. In his decision the arbitrator addressed neither of these issues but determined that the threshold question was whether the supervisors were covered by the recognition clause. Finding that they were not, he concluded that because supervisors were not part of the bargaining unit “assignment of bargaining unit work to supervisors violates the [agreement].”

The Appellate Division concluded “By predicating his ruling upon an issue that neither party raised nor had notice of, the arbitrator effectively denied the parties the right to marshal evidence and be heard on the pivotal issue identified by the arbitrator.” The court did not otherwise address the merits of the arbitrator’s decision, but remanded for further action to remedy what it believed to be a denial of fundamental fairness.

Conflicting views on the appropriate standard of proof in termination cases

As noted in an earlier post here, Arbitrator Michael Rappaport upheld a grievance filed by a firefighter whose employment was terminated for alleged sick leave abuse. The Las Vegas Sun links to his award here. The firefighter was accused of planning in advance when he would take sick leave so that , combined with his vacation, he could take most of the summer off. In addressing the issue, Arbitrator Rappaport discusses his view of the appropriate standard of proof in a termination case. He notes:

In many cases a union will typically argue that the employer should have the burden of proof beyond a reasonable doubt. This is because the union will typically argue that a termination case is equivalent to capital punishment in the labor relations world. Conversely, employers often argue that the burden of proof in a termination case should simply be a preponderance of the evidence since a disciplinary case arises out of the collective bargaining agreement and, therefore, it is contractual in nature. In the Arbitrator’s experience, most arbitrators, including the present Arbitrator, reject both of those arguments and instead tend to regard the appropriate burden as clear and convincing. That is to say, an arbitrator wants to be clearly convinced that the grievant in a termination case committed the acts as alleged that would justify termination.

Arbitrator Rappaport concluded that while the Fire Department had raised suspicions regarding the issue, it had failed to meet its burden of proof.

He also noted that the case involved an allegation of moral turpitude, i.e. dishonesty, and that this further supported the need for a higher standard of proof “because upholding a termination under such circumstances not only is likely to result in loss of the job at issue, but could also brand the discharged employee as dishonest or someone who is not to be trusted when applying for any future employment.”

Unlike the arbitrator whose award was vacated in Decatur Police Benevolent and Protective Association Labor Committee v. City of Decatur , (discussed here), Arbitrator Rappaport made no finding that on a lesser standard the grievant engaged in the conduct alleged. In the Decatur case, the court found no support for the arbitrator’s application of a “clear and convincing” standard and vacated an award reinstating a police officer found, on a preponderance of evidence standard but not on a clear and convincing standard, to have engaged in domestic violence. The court noted “We are aware of no case, and no statute, that requires an allegation of misconduct in this context be proved by clear and convincing evidence because the misconduct may also be criminal and because the City seeks to discharge the officer.”

Labor Arbitration in the News

It was a mixed week for Arbitrator Shyman Das. On Wednesday he heard the dispute between the NFL and the NFL Players Association over whether Commissioner Roger Goodell has the authority to discipline employees for actions committed before the contract was signed in August. Appeal in Saints’ Bounty Case Focuses on N.F.L. Contract - NYTimes.com. Separately Arbitrator Das was removed by Major League Baseball as permanent arbitrator. Baseball Fires Arbitrator Who Overturned Braun Ban - NYTimes.com


Arbitrator Michael Rappaport ordered Clark County Nevada to reinstate a firefighter who had been terminated for allegedly abusing sick leave. Arbitrator orders county to rehire and give back pay to firefighter involved in overtime scandal - Tuesday, May 15, 2012 | 10:53 a.m. - Las Vegas Sun. The Arbitrator found that the County had not met its burden of “clearly and convincingly proving” that the grievant had abused sick leave. The Las Vegas Sun has a discussion of an earlier interest arbitration award by Arbitrator Norman Brand addressing the sick leave and disability issue. Sometimes, arbitration benefits the county-this time by $30 million  

In the ongoing dispute over the reinstatement of Portland police officer Ronald Frashour, the City has filed a brief arguing that compliance with the arbitrator’s award ordering reinstatement would violate the US Constitution, the Oregon Constitution and the Portland City Charter. Attorneys for Portland say reinstating fired Portland cop would violate Constitution, city charter | OregonLive.com
 

SecondAvenueSagas has an entry about a recent interest arbitration award involving the NYC MTA. The MTA’s arbitration problem strikes back The decision was issued by Arbitrator George Nicolau and the blog contains a link to the award.

Two awards affirmed, one vacated

Three recent cases reach different results in actions to set aside arbitration awards.

In Wausaukee School District v. Wausaukee Education Association a Court of Appeals in Wisconsin reverses a lower court decision setting aside an arbitration award. The issue before the arbitrator was whether the School District violated the cba by partially laying off one teacher. The arbitrator upheld the union’s grievance, finding that the layoff was not driven by financial considerations or specific curriculum related reasons but was instead undertaken for improper reasons and in bad faith. He awarded the grievant back pay equivalent to the job reduction. The School District sought to vacate the award, and the lower court granted that request. It concluded that the arbitrator did not find a violation of the layoff article, that the question of whether it was necessary to lay off teachers was beyond the arbitrator’s authority, and that the decision to layoff was not a mandatory subject of bargaining. The Court of Appeals reversed, finding that the arbitrator, in effect, found a violation of the layoff article because he concluded the District “purported to lay off [Grievant] even though there was no credible reason to believe that the District acted on budgetary needs, curriculum needs, or any other reason…” necessary to decrease the number of teachers. While the cba gave the District significant discretion to make layoffs, the Court concluded that the arbitrator properly concluded that the District could not use a layoff as a pretext for terminating a teacher when the evidence failed to show that its actions were in fact based on budgetary reasons.

In Trenton Educational Secretaries Association v. Trenton Board of Education a NJ appellate court similarly reversed a lower court decision setting aside an arbitrator’s award. The underlying grievance involved a claim that certain employees were eligible for compensation for performing the duties of a higher level position. The arbitrator upheld the grievance and the Board of Education went to court seeking to vacate the award. The court granted the BOE’s request, concluding that the award was based on clearly mistaken view of the facts and, in any event, was contrary to public policy. Overturning the lower court, the appellate court concluded: “There is no mistake of fact, much less one so gross as to justify overturning the arbitration award.” The court also rejected the lower courts public policy reasoning, finding it was based on “amorphous considerations”, not a policy embodied in legislative enactments, administrative regulations, or legal precedents. It concluded that the award“does not contravene public policy; it merely honors the contractual promise the Board made to its secretaries in …the Agreement”.

In contrast, in Horton Automatics v. Industrial Division of the Communications Workers of Americathe US District Court for the Southern District of Texas set aside an award reinstating an employee found to have violated the employer’s safety rule. The cba provided that “In determining whether the Company had cause to impose the aggrieved disciplinary action, the Arbitrator shall be limited to deciding whether a published rule or regulation which formed the basis for the discipline was in fact reasonable and violated by the employee” The arbitrator found the safety rule in issue was a reasonable one, and that the employee had violated it. Nevertheless, he concluded that the dismissal was without just cause because the employee had not terminated employees for violation of what the arbitrator considered similarly serious (but different) safety violations. Vacating the award, the District Court determined:

The Arbitrator further second-guessed the relative importance of different “serious” disciplinary violations. As a result, the Arbitrator substituted his judgment for that of Horton, the company responsible for the safe operation of the business for which [Grievant] had been employed. This, he was not empowered to do….

***

As a matter of law, the Arbitrator exceeded his powers … when he inquired into matters other than the reasonableness of the safety rule and the fact that [Grievant] had violated it.

Labor Arbitration in the News

Minnesota Labor & Employment Blog has a post on the significance of a management rights clause for public employers. Management Rights Clauses Are Important for Public Employers

  

For the second time, an arbitrator has determined that the Port Authority of NY and NJ has breached a labor agreement by rescinding free tolls and parking at Port Authority facilities for certain union retirees. Port Authority retirees win another round in perks battle. The Bergen Record reports that Arbitrator Susan Mackenzie concluded that "By plain and unequivocal language" the parties made clear their intent to have the benefit apply to both active and retired employees. Previously an arbitrator made a similar decision concerning retirees from a different bargaining unit. Port Authority ordered to reinstate toll-free passes for retirees

  

OregonLive.com has a summary of that state's case law applying the public policy exception to enforcement of arbitration awards. Oregon case law relating to the public policy exception since 1995. The article was triggered by the City of Portland's refusal to comply with an arbitrator's award to reinstate police officer Ronald Frashour (discussed here). Portland's legal stand against reinstating fired cop hangs on Oregon law that's had little effect

Termination for second positive test result upheld

Arbitrator Jay Fogelberg has upheld the termination of a City of Minneapolis employee who tested positive for a controlled substance a second time. City of Minneapolis and Teamsters Local 320. Grievant had been suspended for three days in 2005 after testing positive and was charged with operating city equipment while under the influence of marijuana. He was required to successfully complete a treatment program and was warned that any subsequent positive test result could subject him to job termination.

In August of 2011, Grievant was notified that he was required to undergo a random drug test. He notified his management that he knew he would test positive for marijuana. This prediction was confirmed by the test results. As a result, his employment was terminated. Arbitrator Fogelberg agreed with the City’s assertion that Grievant had engaged in “gross misconduct”. While noting that the term was not defined in the applicable rules, the arbitrator concluded:

There is no dispute that the grievant, with full knowledge he would fail a drug test for marijuana on the day in question, was about to climb into a 48,000 pound vehicle and operate it on a public road, when he received the call to be tested. Under the circumstances, it would take a quantum leap of faith in my judgment to exclude such behavior from the definition of “gross misconduct”.

The arbitrator also rejected the Union’s argument that Grievant had not reported to work “under the influence” since the effects of the marijuana had worn off by the time he reported to work. He noted that the City’s policy described the term to mean the presence of a drug or alcohol at or above the level of a positive test result.

Finally, the arbitrator was unpersuaded that the Grievant’s length of service and relatively clean work record was sufficient to support reinstatement, observing “Of and by itself, his work history does not constitute a vaccination against discipline. The multiple rule and policy infractions the Grievant committed in 2011, relative to the safe performance of his job, and the potential exposure to liability that the City risks, outweigh any other mitigating factor…”

Labor Arbitration in the News

The Nashua Telegraph reports on an award by arbitrator Bruce Fraser finding no violation of the contract between Merrimack, NH School District and the Merrimack Teachers Association. Arbitrator sides with Merrimack district in spat with union over layoff procedures. In response to a recently enacted state law that prohibits schools from considering only seniority when conducting a reduction in force the district announce that it would also consider a teacher’s educational level. The union challenged this action as a violation of their contract which provided that seniority alone would be the determining factor. The arbitrator noted that the District’s actions were taken in compliance with state law and the union declined to meet with the school board over the matter.

Arbitrator Kathleen Eldergill found in favor of several former supervisors who claimed that the city of Hamden, Connecticut improperly failed to pay them retroactive pay for time they worked prior to their retirement that was covered by a retroactive pay provision of a new contract. NCCC union files suit over health plan ruling. The faculty union at Niagara Community College is seeking to overturn an arbitrator’s award that found that while the College breached the agreement between the College and the union when it changed the health care plan, the Union was not entitled to an award of the money saved by the college as a result of the changes. According to BuffaloNews.com the arbitrator found that the College did have to reimburse faculty members who sustained increased out of pocket costs as a result of the change.

An arbitrator has ordered the University of Michigan to restore certain health and retirement benefits for lecturers at the University. ANN ARBOR: Arbitrator rules in favor of Lectures Employee Organization in dispute against U of M. The arbitrator rejected the University's argument that it was privileged to make the changes during the term of the contract.