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.