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.
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 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

California court rejects effort to apply Pyett, denies employer’s request to compel arbitration

A California court has rejected an effort by American Medical Response to have a wage and hour suit submitted to arbitration rather than proceeding in court. Bartoni v. American Medical Response West. The suit involved a claim by current and former employees of AMR that it had violated state law on meal periods, rest breaks and overtime. AMR appealed from an order denying its motion to compel arbitration pursuant to the arbitration provisions of the collective bargaining agreements covering plaintiffs during the relevant periods. The lower court had determined that the agreements did not contain a “clear and unmistakable” waiver of plaintiffs’ right to a judicial forum for their statutory claims.

The grievance language provided “In the event any grievance arises concerning the interpretation or application of any of the terms of this Agreement, and/or any dispute concerning wages, benefits and working conditions, such matters shall be adjusted according to the procedures and conditions set forth below.” According to the court, none of the agreements contained provisions requiring defendant to comply with the California Labor Code, applicable wage orders, or state or federal law in general.

Affirming the lower court, the Court of Appeal observed that the Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett  established that provisions in a cba that “clearly and unmistakably” require union members to arbitrate statutory claims are enforceable as a matter of federal law. Reviewing case law applying the clear and unmistakable standard, including the Supreme Court’s earlier decision in Wright v. Universal Maritime Service Corp., however, the court concluded that the general language of the contracts in issue here was insufficient to establish such a waiver. The Court noted:

As observed by the Fourth Circuit, "[w]hile it is . . . possible to meet the clear and unmistakable waiver standard of [Wright], it is not easy." (Eastern Associated Coal Corp. v. Massey, supra, 373 F.3d at p. 534.) Where two plausible readings of the CBA are possible, we do not decide which interpretation is the correct one. "The fact that there are at least two plausible and competing interpretations . . . is enough to demonstrate that the [provision] fails to provide a clear and unmistakable waiver. […]" (Id. at p. 536, citing Carson, supra, 175 F.3d at p. 332 ["[w]e hold that clear and unmistakable does not mean general language that under ordinary principles of contract interpretation might very well be interpreted to require arbitration"].) A union waiver of employee statutory rights in a CBA can "be effected only by the most `explicit' language, without any resort to inference." (Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 405.) This principle appears fully applicable here.

Accordingly the court concluded that the lower court did not err in denying defendant’s motion to compel arbitration.