Friday, September 21, 2012

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.

No comments:

Post a Comment