Arbitrating post contract expiration events

The Sixth Circuit has affirmed the arbitrability of a Steelworkers grievance seeking separation pay for a plant closing that took place after their contract expired. USWv. American Standard Corp.

The labor agreement between the Steelworkers and American Standard covering the Paintsville, KY plant, terminated on July 1, 2008. It provided separation pay, calculated based on continuous service, to certain employees in the event the plant closed. On April 18, 2008 American Standard gave the contractually required 60 day notice of contract expiration. Between that date and the actual date of contract expiration American Standard also announced it was closing the Paintsville plant. The closing took place on October 15, 2008, and the Company did not pay separation pay to any employee.

The Union filed a grievance and sought to arbitrate the eligibility of employees for the separation pay. The Company refused to arbitrate and the Union filed a suit seeking to compel arbitration. The district court found the grievance arbitrable, and the Company appealed.

The Court observed that under the Supreme Court's Litton decision a ”post expiration grievance can be said to arise under the contract only where it involves facts and occurrences that arose before expiration [or] where an action taken after expiration infringes a right that accrued or vested under the agreement…” The Court further noted, however, that there is little case law delineating when a right accrues under a contract but found that the Litton court suggested that to vest or accrue a right must include factors “that remain constant, that cannot improve or atrophy, and that can be measured on a universal scale.”

Without deciding the merits of the grievance, the Court concluded that the record supported the arbitrability of the dispute, finding:

The severance pay right described in the CBA meets each of these prescriptions for accrual under the agreement. The determination of the right is objectively quantifiable based on a specific formula that considers only the number of years of continuous service the employee has had with American Standard. The length of employment is a universal scale that remains constant across all employees. Likewise, the separation pay right accumulated step-by-step; the more years an employee worked, the more pay he was entitled to. Considering these factors, we conclude that the separation pay right in the CBA accrued under the CBA.

Action to compel arbitration not barred by statute of limitations, timeliness for arbitrator to decide

In United Steel, Paper, and Forestry, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Wise Alloys (U.S.D.C N.D.AL), the court rejected Wise’s claim that the union’s action to compel arbitration was brought too late. The Union had grieved Wise’s interpretation of the cost of living clause in its labor agreement, and the interrelationship of that clause with the employee’s health care costs. Wise rejected a union grievance on the issue, claiming that the grievance was untimely, and “therefore all claims and demands are waived in its entirety by the Union”. The company also refused to hear the grievance at subsequent steps of the grievance procedure. When the Unions sought to submit the grievance to arbitration the Company responded (on July 28, 2010) that it “will not agree to submit the above-referenced issue to arbitration because it conflicts with the terms of our Labor Agreement…” On October 19, 2010, the Union filed suit to compel arbitration.


Wise argued that the statute should begin to run from the time it first rejected the grievance. The court rejected this position, finding it did not constitute an “unequivocal refusal” to arbitrate; rather the denial could be read as a statement that the Company would argue before an arbitrator that the grievance was untimely. Finding that the first unequivocal refusal to arbitrate was the Company’s July 28 letter, the Court concluded that the actions fell within the six month limitations period.


The Court also rejected Wise’s claim that the question of timeliness should be decided by the court rather than an arbitrator. It contended that the Supreme Court’s decision in GRANITE ROCK CO. v. TEAMSTERS required a conclusion that where a contract provided that untimely grievances were not arbitrable, arbitrability was to be decided by the court rather than an arbitrator. The Court determined that Granite Rock did not change the law that timeliness issues are for the arbitrator to decide, noting “a court must resolve contractual issues related to arbitration agreements, i.e., was a contract formed and does the contract provide for arbitration of a dispute? Where a contract was formed and covers a dispute, all further issues relating to that dispute are matters for an arbitrator to decide.”


Concluding there was no dispute about the formation of the contract or the substantive arbitrability of the dispute, the court ordered Wise to arbitrate the timeliness of the dispute.

Labor Arbitration in the News

The CantonRep.com reports on an arbitrator’s award reinstating a police officer, terminated for allegedly violating an alcohol rehabilitation agreement. Fired Jackson officer gets job back.
 
According to the Daytona BeachNews-Journal an arbitrator has upheld the termination of a police officer who threatened to kill himself and other police officers after police responded to his home after his wife called 911. Suicidal Daytona Beach officer won't get job back.
 
The New Haven Register reports on an appellate court’s decision affirming a lower court order confirming an arbitration award ordering the City of Hamden to rehire five public works employees. The arbitrator held that the City breached an agreement not to lay off employees as long as the City was subcontracting recycling work. Appellate court backs rehiring decision at Hamden Public Works Department (document).

 The Neshaminy (PA) School District has filed a petition seeking to vacate an arbitrator’s award reinstating a teacher who was dismissed following her arrest for theft and receiving stolen property. The School District claimed that the teacher misrepresented sick leave to cover her court appearance and charged her with immorality under the School’s Code. Arbitrator Rochelle Kaplan found that the Grievant had misrepresented her sick leave but found no evidence that she engaged in immoral conduct. She ordered the teacher reinstated following completion of her rehabilitation program. MSNBC.com Neshaminy appeals ruling to rehire teacher charged with shoplifting.
 
The Appellate Strategist discusses a decision of an Illinois appellate court concluding that an arbitrator erred in implying a just cause for dismissal standard into a contract that did not expressly include one. Beware The Sounds of Silence. The court concluded that “The arbitrator’s decision …went beyond the clear language of the collective bargaining agreement.”

Second Las Vegas firefighter reinstated

A second Las Vegas firefighter, a Battalion Chief, has prevailed in an arbitration over her termination for her claimed involvement with sick leave abuse. Grievant was terminated after an audit found evidence suggesting that department employees had preplanned sick leave to supplement vacation. Grievant was accused of preplanning her own sick leave, her involvement in scheduling the preplanned sick leave of another employee, and the preparation of a set of rules for battalion chiefs which penalized employees for not using vacation time and thus denying overtime opportunities to the other battalion chiefs. A similar dispute was addressed by Arbitrator Michael Rappaport, discussed here and here.
Without discussing the standard of proof required, Arbitrator Frank Silver reversed the termination and reduced the discipline to a written warning. While finding that the City had established a basis for its suspicions of abuse, he concluded that (with one exception) it had not met its burden of proving that Grievant had engaged in the misconduct alleged. The City was not able to rebut Grievant’s claim that her own “preplanned” overtime was based on a reasonable expectation based on her medical history and had been approved by the former Fire Chief. Concerning the approval of the retiring employee’s sick leave, Grievant testified that she was serving as a scheduler and had no authority to approve or disapprove overtime. She claimed she did raise the issue with her superiors and was informed that they had approved the sick leave. Finally, on the issue of the rules, the evidence established that they were established in a meeting of all battalion chiefs, and Grievant was simply the scribe who reduced the joint agreement to writing. While finding the rules inappropriate, the arbitrator concluded that Grievant was disciplined more severely than the other battalion chiefs involved.
The Las Vegas Review Journal reports on the case Second firefighter reinstated with pay in sick leave case and links to Arbitrator Silver’s award here.

Labor Arbitration in the News

Arbitrator upholds termination of police officer involved in shooting


The Herald of Everett, Wash. reports that Arbitrator Janet Gaunt has upheld the termination of a police officer involved in a shooting, concluding that the City had just cause for the termination. Firing of former Everett cop Troy Meade upheld. The Arbitrator’s award can be found here. The officer upheld the City’s determination that the officer had violated policy when he shot an intoxicated individual he believed was reversing his vehicle in the direction of the officer. According to the Arbitrator “Department policy prohibits shooting into a moving vehicle unless there is no other reasonable means of protecting an officer or a third party in imminent threat of serious injury or death. Officer Meade did have a reasonable alternative, i.e., protective cover readily available behind an adjacent SUV. By failing to use that alternative, Meade violated applicable provisions of the EPD’s Use of Force Policy and caused a civilian death that could have been avoided.”


Deputy Sheriffs improperly denied overtime opportunities


Arbitrator Raleigh Jones has concluded that Milwaukee County modified past practice and unilaterally restricted the opportunities for Deputy Sheriffs to work overtime at County Correctional facilities. jsonline.com Sheriff's deputies denied overtime work, owed back pay, arbitrator finds. Arbitrator Jones’ award can be found here. The facilities were staffed with both Deputy Sheriffs and lower paid corrections officers. While voluntary overtime opportunities had been shared between these two titles based on seniority, beginning in January 2011 the County decided to limit opportunities for voluntary overtime to corrections officers. It relied on the management rights provision of its cba with the Deputy Sheriffs’ Association in support of its actions. Arbitrator Jones concluded that that provision gave the Sheriff the right to determine whether overtime was necessary, but that the contract was ambiguous concerning the method of distribution of those opportunities. In light of that ambiguity the arbitrator looked to the parties’ past practice. Finding that the opportunities had long been shared between the two titles the Arbitrator concluded that “The Employer’s decision to end the practice … violated Section 3.02(3) (a) as those provisions have come to be interpreted by the parties themselves.”


No collateral estoppel based on NLRB’s dismissal of unfair labor practice charge


Graphic Communications Conference, IBT, Local 140 prevailed in an arbitration against the Los Angeles Times arising from a warning issued to an employee who was also a union official, allegedly because of his union activities. ARBITRATOR RULES AGAINST L.A. TIMES CITING ANTI- UNION ANIMUS. Arbitrator Fred D'Orazio's award can be found here . Grievant had filed a charge with the NLRB containing the same allegations. The charge was initially deferred to the grievance/arbitration procedure, but the deferral was subsequently rescinded and an investigation undertaken. The Regional office found insufficient evidence to support the charge and determined that further proceedings were unwarranted. At the arbitration the employer argued that in light of the NLRB’s action the grievance should be dismissed under the doctrines of res judicata and collateral estoppel. The Arbitrator rejected this defense, noting that the matter had not been “actually litigated”, a prerequisite to application of those doctrines. Proceeding to the merits, the Arbitrator found that the written warning was motivated by anti-union animus, in violation of the contract.


Employees terminated for claimed fraud ordered reinstated


The Hartford Courant reports that 40 of 103 employees of the State of Connecticut who had been terminated for claimed improper receipt of disaster relief after Tropical Storm Irene have been found entitled to reinstatement. D-SNAP: Many State Employees To Get Jobs Back As No Fraud Found. Arbitrator Susan Meredith concluded that the discipline imposed was too severe, and that many of the employees had committed mistakes, but not fraud.

Arbitrator concludes past practice prevails over clear contract language

Arbitrator Christine D. Ver Ploeg has issued a decision involving the City Of Minnetonka, Mn. and Teamsters Local No. 320. The dispute arose from a claim for severance pay for grievant, who had voluntarily resigned his position as a police officer for the City. The relevant language of the agreement provided that a departing employee would be eligible for severance when, inter alia, “the employee is eligible, based on age and/or service requirements, for an annuity from the Public Employees Retirement Association”.

At the time of his separation from employment grievant was 46 years old and had 23 years of service. To be eligible for an annuity from PERA an officer must be at least 50 and have three years of service or meat the “Rule of 90”, i.e. a combination of age and service totaling 90. Grievant did not meet these requirements. The City denied grievant’s request for severance. The Union grieved, claiming the contract required grievant to meet only one of the conditions, relying on the contract language providing eligibility if an employee met "the age and/or service requirements…”

The City argued that the language was ambiguous and, in any event no City employee had ever been granted severance based on the Union’s interpretation of the language. 

Initially, the Arbitrator concluded that the contract language supported the union. She reasoned: The question is whether the phrase 'based on age and/or service requirements'can in any way be construed to mean ‘both.’ It cannot. For this language to mean ‘both,’ it would have been reasonable, easy and obvious for the parties to use the word ‘and’ rather than ‘and/or.’ On its face ‘or’ does not mean ‘both.’

The Arbitrator next turned to the City’s past practice argument. She noted that the City faced a significant challenge on this point; it sought to amend the clear and unambiguous language of the contract. She noted that the Employer’s burden was high, but not impossible. 

The evidence showed that the contract language in issue was copied verbatim from the City’s Personnel Policy and that there was no discussion during the negotiations concerning the terms or how the City applied them. Identical language was also contained in two other labor agreements the City had with different unions. The City presented evidence that for 18 years the eligibility language applied to virtually all employees, both union and non union, and that it had always required employees to meet both the age and service requirements to be eligible.

In response to the question of “whether the City’s evidence of a past practice is ...so compelling that it should overcome the clear and unambiguous language of Section 29.13,” the Arbitrator concluded that it was. She determined:

For at least 18 years all separating employees, including two bargaining unit members, have been required to meet both the age and service thresholds to be eligible for severance pay.
***
This has apparently been such an accepted practice that until this grievance no employee-either union or non-union- has ever protested.

Another basis for finding that the Employer’s past practice prevails over contract language is found in the fact that the parties never actually negotiated the terms of Article 29, Severance Pay.


Based on this history the Arbitrator concluded that their intent was to maintain the status quo. 
Accordingly she concluded that despite what she considered the clear language of the contract the grievance would be denied.

Labor Arbitration in the News

Arbitrator Stephen Burbank rejected the grievance filed by the NFL Players Association challenging the authority of the Commissioner to impose discipline on current and former Saints players for their alleged involvement in a pool to reward players for incapacitating opposing players. Nola.com has posted a copy of the award here.

The American Federation of Government Employees has posted a copy of the decision of a panel of arbitrators affirming the finality of impasse procedures for the employees of the Transportation Security Administration.TSA Union Prevails in Landmark Arbitration; Ensures for Collective Bargaining Agreement The award can be found here. The panel concluded that the position advocated by the TSA, arguing that an interest award following impasse was not binding, would result in an “endless loop” of impasse, award, possible non ratification, impasse, etc.

Arbitrator James Margolin has issued an award finding that the City of North Las Vegas breached a provision of its cba with the North Las Vegas Police Officers Association which required the City to pay 100% of the premiums for medical benefits. The NLVPOA website contains a link to the award here. The cba required the City to provide health benefits identical to those provided to other City employees and to pay 100% of the premiums. During the term of the contract the City introduced a new plan for employees which contained four options. For one of those options, an HMO, the City would pay the entire premium. The POA felt the HMO option was significantly less favorable than the medical insurance they previously had and argued that the City was obligated to pay the entire premium for whichever option the unit employees selected. Arbitrator Margolin upheld the union’s grievance and further concluded that the parties past practice “reveals that the parties intended Article 15, Section 2A to preclude the City from unilaterally reducing the quality of the medical insurance that it provides to the POA”.

Firefighters, Police Officers, Teachers- Three Awards

Fire Prevention Bureau’s Condonation of misconduct warranted mitigation of discipline:

 Arbitrator Edwin Benn has issued an award reinstating four Chicago firefighters and reducing the discipline on 44 others. The Chicago Sun-Times has a report about the case Arbitrator: Mileage padding ‘almost a work rule’ in fire prevention unit and Chicago Tribune columnist Eric Zorn Arbitrator goes the extra mile to help fire department cheaters has a link to the award here. 

The firefighters were disciplined for what the Arbitrator found to be their essentially undisputed actions in knowingly submitting inaccurate mileage reimbursement reports, enabling them to claim the maximum reimbursement each month. Arbitrator Benn noted that the employees’ conduct “clearly violates reasonable expectations of employees in the workplace” and clearly violated the applicable rules. However he found that the actions were “condoned- indeed, encouraged (as well as engaged in) – by their supervisors”. But for that condonation the Arbitrator concluded that the City would have been within its rights in terminating all of the grievants. Nevertheless, he found that “the condonation and supervisory encouragement for the FPB employees to submit the maximum amount allowable for mileage reimbursement instead of submitting actual mileage expenses incurred was so deep, long-standing and pervasive that it went beyond condonation to rise to the level of becoming a work rule in the FPB.”

The Arbitrator also concluded that while the city had not constructively discharged two of the grievants it had improperly refused to allow them to rescind their resignations. He therefore treated them as employees covered by the grievance. 

Noting that “the purpose of discipline is to send a corrective message to employees” the Arbitrator found the discipline imposed excessive and reduced each of the suspensions and reversed the terminations.

Mayor Emanuel has indicated he will not seek to overturn the award. Emanuel won't appeal firefighter mileage padding case.


City did not violate contract when it terminated the Police Department’s Support Car program:

 Downes Fishel Hass Kim reports on a recent decision of Arbitrator Clarence Rogers, and links to the award. The dispute involved the City’s actions in terminating a program that assigned a vehicle to each officer in the department for his or her exclusive use in the performance of their duties, and allowed the officer to take the vehicle home at the end of their shift and use it for personal purposes. The program was not expressly referenced in the cba, but the agreement did provide that all working conditions would be maintained “until good faith efforts have been exhausted between the Chief of Police or his designee and the FOP”

The newly elected Mayor (elected following the recall of his predecessor) issued a memorandum prohibiting all City employees from taking City owned vehicles home. This action was protested by both the Police Chief and the FOP. The directive was delayed for a week to allow the Chief, the Mayor and the FOP to discuss the issue before the directive took effect. After that meeting, certain employees were allowed to continue to take the vehicle home, while the program was discontinued for the remainder. 

Rejecting the Union’s grievance, the Arbitrator concluded that the evidence of the City’s fiscal problems supported the City’s actions and the Union had not met its burden of proving a violation of the contract. The Arbitrator observed:

           Private sector employers get their income through profits; and answer to the board of directors. The City depends primarily on taxation from its citizens to fund its operations. As a result, elected officials listen and answer to the concerns of their constituents. It should be noted that testimony was presented to show that the immediate past mayor was recalled by the citizens of Portsmouth. Also, the levy tax that was on the ballot before the Program was eliminated failed. The tax levy that was on the ballot after the Program was modified was passed.

           I am not suggesting that the public has a right to control or overrule the Agreement of the parties. I am saying the Agreement is subject to an interpretation which is consistent with the interests of the public.
The Arbitrator concluded that the meeting between the Mayor, the Police Chief, and the FOP satisfied the City’s obligations under the cba. 

School Board improperly modified teacher layoff procedures:

Nola.com reports on an award by Arbitrator James Sherman finding that the Jefferson Parish School Board violated the parties’ cba by unilaterally changing the order of layoffs. Jefferson Parish school officials slammed in arbitration ruling. The Jefferson Federation of Teachers links to the award here.

The cba provided that “If the Board shall determine that it is necessary to lay-off any teachers, such lay-offs shall be in inverse order of seniority, provided the teachers remaining are fully certified to teach the department /subject areas remaining to be taught.” During the term of the cba, the Board issued a new Reduction in Force Policy. Pursuant to the new policy, a teacher whose most recent appraisal rating was “unsatisfactory” or “needs improvement” would be laid off first. The union challenged the new policy and a hearing was held before Arbitrator Sherman.

Initially, the Arbitrator rejected the union’s efforts to challenge the determination that lay-offs were “necessary”. The Arbitrator observed “This sort of decision is one of the most sacrosanct of management’s prerogatives. No arbitrator should delve into the minutiae of whether a school board should lay off a specific number of teachers with one specialty while recruiting twice as many with a different specialty that may be in shorter supply in the district. It is not just a simple matter of numbers. It is a complex and slippery slope to nowhere”.

On the merits of the contractual issue, however, the Arbitrator upheld the grievance in a strongly worded opinion. He noted:

This case may not involve an investigation into whether layoffs were necessary, but that is not the point. These Teachers were not laid off. They were fired for a single cause. The problem for the Board was that they never proved that any of the sub-optimal performance appraisals issued to any of the 50 or so Teachers gave them just cause. ***
You can call it a layoff, but if it looks like a discharge, walks like a discharge and quacks like a discharge, then it is not a layoff. It is a discharge. These were not layoffs. They were discharges for unproven causes. This was an end run around the due process rights and freedoms from arbitrary treatment that lies at the core of the Parties’ Agreement. It was a premature and risky end run around the established standards of proof and guarantees of due process that characterize workplace discipline in a unionized setting.

 The Arbitrator remanded the dispute to the parties to determine how the impacted grievants could be made whole “in all procedural and substantive respects” but retained jurisdiction for the purpose of resolving disputes about the implementation of the award.

Arbitrator erred in awarding back pay after finding just cause for termination

The Columbus, Ohio firm Downes Fisher Hass Kim reports on a recent decision of the Franklin County Court of Common Pleas on competing motions to vacate an arbitration award. Court Overturns Arbitrator's Award; Reinstates Original Discipline. The firm links to the court's decision here.
The grievant was a police officer in the City of Reynoldsburg, Ohio. His employment was terminated for alleged misuse of sick time and for submitting a false doctor’s note supporting the absence. The arbitrator found that the City had just cause for the termination, but extended the termination date to the date of the award, effectively granting grievant back pay and benefits for that period. The arbitrator based this action on his conclusion that the City had violated the officer’s rights by improperly issuing a subpoena under the guise of a criminal investigation for medical records related to the claimed doctor visit and note.
The court denied the Union’s request to vacate the award insofar as it upheld the termination, finding “ample evidence” supporting the decision. However the Court agreed with the City that the arbitrator had exceeded his authority by granting the grievant an extended off roll date. The Court noted:
The sole issue before the Arbitrator was … whether the grievant was terminated for just cause, and if not, what, if anything, was a proper remedy. The Arbitrator concluded that, based on the evidence, [grievant] had committed the rule violations and thus, was terminated for just cause.
***
Despite these findings, the Arbitrator modified the date of [Grievant’s] termination …. The rationale that the Arbitrator used in changing the date of termination effectively punished the City for the alleged unlawful subpoenas….

The Court determined  that in awarding damages for the alleged procedural errors committed by the City during the investigation, the Arbitrator was "clearly exceeding the authority given to him by the parties’s CBA"  and the applicable statute.
 Accordingly, it vacated that portion of the award extending grievant’s off roll date.